Summary: There was fault in the care that was provided to Mr C and there was poor communication relating to the safeguarding enquiries into the care. Both councils have agreed to apologise, to pay a financial remedy and to remind staff of the importance of involving the person at the centre of a safeguarding enquiry in the enquiry.

The complaint

1. Mrs B complains on behalf of her adult son, Mr C, who does not have the mental capacity to make the complaint. At the time of the complaint, Mr C was living at a care home which has now closed down.
2. East Sussex County Council commissioned the care and Kent County Council carried out safeguarding enquiries into allegations of abuse and neglect by the Home.
3. Mrs B complains about the poor care Mr C received at the Home and poor communication relating to the safeguarding enquiries.

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What I have and have not investigated

4. Kent Council has not provided the safeguarding documents to Mrs B as it says it can only share these documents if Mrs B held a Lasting Power of Attorney for health and welfare for Mr C. Mrs B disagrees with this position. I have not investigated this complaint as the Information Commissioner’s Office is the expert in this area and Mrs B can take her complaint to the Information Commissioner’s Office.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I have discussed the complaint with Mrs B and I have considered the information she has provided. I have read East Sussex and Kent Council’s records. As the Home has closed, I have been unable to read its records. I have considered the relevant law, guidance and policies and comments on the draft decision.

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What I found

Law, guidance and policies

Care Quality Commission (CQC)

11. The CQC is the statutory regulator of care services. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• Service users must be treated with dignity and respect (regulation 10).
• The care and treatment must be provided in a safe way for service users. This includes the proper and safe management of medicines (regulation 12).
• The nutritional and hydration needs of the service user must be met. Where a person is assessed as needing a specific diet, this must be provided in line with that assessment (regulation 14).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service (regulation 17)

Mental Capacity

12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.

Safeguarding

13. Section 42 of the Care Act 2014 says the local authority should start a safeguarding enquiry if an adult in its area:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
14. The objectives of an enquiry into abuse or neglect include, among other things:
• establish facts.
• ascertain the adult’s views and wishes.
15. The Care and Support Statutory Guidance emphasises the importance of putting the adult at risk of abuse at the centre of the enquiry. ‘Making safeguarding personal’ means safeguarding should be person-led and outcome-focused.
16. The Guidance says the adult should always be involved from the beginning of the enquiry. The enquiry lead should ask the adult at risk what they would like the enquiry to achieve and how they would like to be involved. What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate.

What happened

17. Mr C is an adult man who has physical and learning disabilities and medical conditions.
18. Mr C’s care plan said Mr C had significant gastric difficulties which caused him a lot of pain. He also had chronic constipation and had to follow a very restricted diet. The plan said Mr C’s constipation needed ‘very careful management’ or otherwise Mr C would display challenging behaviours which could lead to harm to himself or others. The need to open his bowels could make Mr C aggressive and he was more likely to headbut at this time. He could be vocal and very distressed when experiencing constipation.
19. There was a comprehensive constipation management plan in place which explained what medication Mr C should take for each day when he did not have a bowel movement.
20. Because of the severity of Mr C’s challenging behaviours and the risks posed by these behaviours, he needed constant waking support, the majority should be at a ratio of 2:1 (2 care workers).
21. Mr C had Safespace equipment in his room (an adapted bed and surround which restricted Mr C’s movements at night to keep him safe). Mr C wore a protective helmet during the day to reduce the risk of harm if he headbutted. He did not wear the helmet during the night as he slept in the Safespace equipment.
22. Mr C moved into the Home on 12 June 2019.

November 2019 - safeguarding referral 1

23. Kent Council received a referral on 11 November 2019 relating to an incident in the back of the mini-bus where Mr C was displaying concerning behaviour and a care worker had to intervene.
24. The care worker was interviewed and said he put his hand over Mr C’s eyes to manage his behaviour as this is what it said in Mr C’s care file.
25. Kent Council said the matter met the threshold for a safeguarding enquiry but could not progress its enquiry until the police had completed its investigation.
26. Mrs B was informed of the incident (note dated 20 November 2019).
27. The police checked CCTV but unfortunately the cameras were not in a location to capture what happened. Mr C was unable to give evidence and the witness did not wish to make a statement to the police.

December 2019 – concerns about health management

28. Mrs B told East Sussex’s social worker that she was concerned about how the Home was managing Mr C’s health. Mr C had been home at the weekend and had been aggressive towards her as he was constipated. The constipation was possibly caused by the fact that his pain medication had been increased to three times a day. She also felt the Home did not keep her informed about health appointments.
29. The Home confirmed that the pain medication had been increased which may be increasing the constipation. Both pain and constipation affected Mr C’s behaviour.

December 2019 – restrictive practice plan

30. The Home put a restrictive practice plan in place dated 27 December 2019. The plan said that, if Mr C became agitated, banging his head, scratching staff, flailing arms, staff should:
• Initially use distraction techniques. Mr C had soft play toys for this purpose.
• If these techniques did not work to calm Mr C down, then staff should stand or sit in front of him and place a hand over his eyes.

February 2020 – Police closure of investigation and referral to the CQC

31. The police informed Kent Council on 13 February 2020 it was closing its investigation into the incident on 11 November 2019 because of a lack of evidence.
32. However, the police said it had identified four areas of concern which it had referred to the CQC. They were:
• Mr C’s care plan was dated two days after the incident. The previous care plan did not include a direction for care workers to put their hand over Mr C’s eyes to get him to release a member of staff.
• The care worker who was the subject of the allegation admitted he had not read Mr C’s care plan on the day he supported him. He said he had read it in the past.
• The care worker admitted they stopped at the other care worker’s address so the other care worker could pick something up. That should not have happened as there should have been two people supporting Mr C at all times.
• The care worker said he found out later that Mr C should not be transported in a vehicle where he is sitting next to a window. He feels he should have been informed of this.

February 2020 – referral 2

33. On 5 February 2020 one of the Home’s care workers made an allegation against an agency worker. The Home’s worker said she and the agency worker were supporting Mr C in his wheelchair. The Home’s worker said the agency worker acted inappropriately when Mr turned his head back and spat.
34. The agency worker was asked to leave the site and was escorted off the building.
35. Kent Council started a safeguarding enquiry. There were internal emails in March 2020 to chase progress. In May 2020 the Council noted that the care agency was meant to be investigating the incident.
36. Kent Council chased the agency on 1 June 2020 and the agency replied on the following day. The agency said the agency worker had denied the allegations, but the agency also recommended some performance improvement actions which suggested that the worker had not acted as he should have done.
37. Kent Council said the outcome of its enquiry was ‘inconclusive’. But, as the agency worker was no longer working for the agency and the agency had taken appropriate action if the person came back, the risk to Mr C had been removed.

March 2021 – referral 3

38. Kent Council received a safeguarding referral on 26 March 2021.
39. One of the care workers witnessed Mr C in his flat distressed. He was banging on the door with his hand and banging his head. Staff were nearby but took no action. The following morning, Mr C was still wearing his helmet and he had marks on his forehead and his chin from rubbing the strap of his helmet.
40. A note dated 30 March 2021 said Mrs B had been informed of the incident.

April 2021 – visit to the Home

41. Kent Council started a safeguarding enquiry and social workers from both councils visited Mr C on 1 April 2021.
42. The manager said that Mr C normally went to his Safespace with his helmet on and staff would remove it when he started to fall asleep. Unfortunately, there were no night records for the day of the safeguarding incident. The manager said both support workers involved had been suspended.
43. The Council said Mrs B had raised concerns that Mr C had not been referred to the Learning Disabilities Health team, the Incontinence team and a dietitian. The Home said Mr C had been referred to the Learning Disabilities team last week and they would talk to the GP about referrals to the Incontinence team and a dietitian.

April 2021 – internal investigation

44. The Home investigated the incident on 26 March 2021 and interviewed all the staff members involved.
45. Mr C’s care plan included these guidelines if Mr C was headbutting:
• Mr C headbutted for sensory stimulation.
• Staff must encourage Mr C not to headbutt, as he could hurt himself.
• Staff must attempt to redirect Mr C to another activity, such as yoga balls or foam sticks.
46. The Home’s investigation noted that the care workers did not know what actions they should take when Mr C was headbutting and had not properly read the care plan. The Home’s investigation into the incident concluded that Mr C had not been supported sufficiently when he displayed challenging behaviour, but it could not say whether his helmet had been left on during the night.

April 2021 – referral 4

47. A safeguarding referral was received on 23 April 2021. Mr C was ‘vocalising’ and grabbing and scratching care staff. His behaviour was escalating so care staff picked him up by his hands and feet/ankles and carried him inside his flat and then withdrew. Mr C then calmed down.
48. The Home informed Mrs B of the incident on the same day.

May 2021 – Council visits

49. Kent Council’s social worker visited Mr C on 10 May 2021 and raised concerns about the record keeping. She said there was no mention of the incidents on the daily logs. There had also not been timely reviews of the care plan and risk assessment. The social worker was concerned about what happened in April 2021. Mr C was held by his hands and could easily have slipped on the concrete pathway. The manager said the decision was 'spur of the moment’ as staff were in a fraught situation.
50. East Sussex’s social worker visited on 14 May 2021. She noted Mr C’s daily logs were ‘unclear and unfinished’. The Home said it was updating the care plans and risk assessments. There were ongoing issues with pain management.
51. The social worker said the Learning Disabilities Team should be contacted for a moving and handling assessment and the Positive Behaviour Support team should be contacted to provide help in managing Mr C’s behaviour.

May 2021 – referral 5

52. Safeguarding referral dated 23 May 2021. The Home checked Mr C’s tablets and noted that two tablets were missing (painkillers) and there were no records to show what happened to them.

June 2021 – referral 6

53. On 16 June 2021 Kent Council received a referral from a senior nurse who visited Mr C to assess his eligibility for NHS funding. The nurse said:
• It became clear during the assessment that Mr C had a number of unmet health needs and nobody had referred him to an appropriate team for further investigation despite the seriousness of the concerns.
• Mr C displayed behaviours which needed two staff to manage and required an ‘isolation room’. He kept targeting his throat after eating or drinking, banging it, bashing it, targeting others, causing harm to himself and others. These were longstanding issues, but nothing had been done to address the underlying causes.
• Mr C should have been referred to a speech and language therapist, the Community Disability Nursing Team, Psychology or Mental Health Team. He had only recently been referred to the Positive Behaviour Support team. He had suffered a bereavement and understood his father was no longer in his life but had not been given any support in relation to this.
• Mr C was ‘not safe and that he has not been placed appropriately… the fact that they have not referred him to the local CLDT (Community Learning Disability Team) is shocking.’
• The social worker ‘may need to act urgently to ensure he is safe.’

June 2021 – safeguarding conference

54. Kent Council held a safeguarding conference on 29 June 2021 and invited Mrs B.
55. The social worker had visited the Home on 22 June 2021 and reported back. She noted the following:
• Mr C’s support plan and risk assessment needed to be updated.
• Mr C made a lot of vocalisations during the visit and the social worker asked a member of staff whether Mr C was in pain and whether he had been given any pain killers that day. The staff member said he had not and felt that the vocalisations showed that Mr C was excited, rather than in pain.
• The social worker checked Mr C’s daily records and these showed minimal activities away from the Home. Many of the workers supporting Mr C were agency staff.
• Referrals had now been made to the Learning Disabilities team, the Incontinence Service, the Speech and Language Therapists team, Physiotherapy and the Pain Management clinic.
56. The social worker had started the search for a new placement for Mr C.
57. Mrs B told the people attending the conference that she felt ‘pushed aside’. She had raised concerned in June 2019 and nothing had been done and she was very cross and angry.
58. On 28 June 2021, the Council checked Mr C’s medication chart and noticed that Mr C had been given pain killers only once during a four-week period.
59. On 17 July 2021 Mrs B said Mr C’s swing collapsed while he was on it. She also said there was a problem with the zip on his Safespace. Mrs B also said she had provided 2 trampolines to be used at the Home but they disappeared within 3 months.

August 2021 – referral 7

60. On the same day Kent Council received a referral from a speech and language therapist (SALT) who visited Mr C to assess him. She visited Mr C with two of his support workers and said:
• There was limited personalisation of Mr C’s bedroom and it smelled strongly or urine.
• He was banging his helmet with a foam stick, his vocalisations became louder and changed in tone. The support worker said Mr C was probably ‘feeling agitated or in some pain’ and a pain killer was administered. Mr C was hitting another support worker in the chest and grabbing her clothing. The worker ‘reacted with a negative tone of voice and … put her hand to the side of [Mr C’s] face and pushed his face to the side.’
• The support worker said that covering Mr C’s eyes was a strategy to release Mr C’s grip from staff, but the SALT said that this (covering Mr C’s eyes) was not what the support worker had been doing.
• The support worker said she had worked with Mr C for a year, but had not received any formal restraint training.

September 2021 – conference

61. Kent Council held a safeguarding conference on 2 September 2021.
62. The speech and language therapist (SALT) reported back and said:
• Staff were not aware Mr C’s communication passport which was a concern. Recommendations from the SALT and the occupational therapist were not being followed.
63. Mrs B reported problems with Mr C’s equipment. The zip on the Safespace at home had broken and had to be fixed which was expensive. There had been a long delay in setting up Mr C’s swing at the Home. The swing had been moved from Mrs B’s home to the Home but Mrs B said that, if she had known how long it would take for the Home to set up the swing, she would have left it at home.

September 2021 – referral 8

64. On 13 September 2021 Kent Council received a referral from a support worker who used the whistleblowing hotline. The support worker said they found an agency worker asleep in the kitchen while Mr C was locked in his flat. The agency worker was asked to leave the premises.
65. The Home said that there were two agency staff present and that there were exits available but the main door leading through the kitchen had been locked.

September 2021- conference

66. Kent Council held a safeguarding conference on 28 September 2021.
67. The Chair said the risk to Mr C had reduced and a key worker team was being put together for Mr C. Once this had been done, the Chair said she would consider closing the safeguarding enquiry.

October 2021 – referral 9

68. On 7 October 2021 Kent Council received a referral from two learning disability nurses who visited Mr C. The nurses said they had asked to see Mr C while he was supported by staff who had experience in supporting Mr C. They said:
• The support workers had only supported Mr C for a couple of days.
• They had received no induction or training on how to support Mr C.
• They had not read his care plan or risk assessment and did not know how to find these.
• There were no bowel charts in place so it was not known how the Home supported Mr C in his constipation problems.
• The fluid records showed Mr C did not drink after 4 pm and drank less than 1000 ml a day.
• The environment was not homely and smelled strongly of urine.
• Staff were asked about Mr C’s eating and drinking and were unaware of any risk assessments or guidelines in this respect.
• Staff were asked about Mr C being in pain and were unable to answer or identify when Mr C may be in pain. They were not aware of any risk assessments regarding pain or how to support Mr C in this respect.
• There were gaps on Mr C’s MAR (medication administration record) charts where medication had not been given or not been signed for.
• The Home failed to take Mr C out for activities. The last time Mr C went out was on 27 September 2021 (the visit was on 7 October 2021).
69. East Sussex Council started to urgently look for an alternative placement for Mr C.
70. Mrs B sent an email to the Home and East Sussex Council on 18 October 2021 saying she knew about the safeguarding referral from the nurse two weeks ago and said: ‘I’ve heard nothing since! Other than another safeguarding!! What is happening???’
71. The CQC carried out an unannounced visit to the Home on 20 October 2021 and informed East Sussex Council that it was considering enforcement action against one of the four homes on the site (not the home where Mr C was living). The CQC told the agencies there were restrictions regarding the publication of the CQC’s actions.
72. Both councils were informed on 22 October 2021 that it was likely that the Home was going to be closed but this information could not be shared yet.

Visit – October 2021.

73. Two nurses visited Mr C on 22 October 2021 and concerns were shared with both councils. The nurses said:
• Mr C should receive 2:1 support during the day, but, when they visited, they were told he was supported by only one person at times.
• The agency worker who supported Mr C did not know about Mr C’s care plan and risk assessment. He did not know that Mr C had difficulty swallowing and was at risk of choking and was not aware of the eating and drinking guidelines for Mr C.
• Staff reported that they fed Mr C which contradicted the speech and language therapist’s guidelines.
• A bowel chart was only put in place in August 2021 despite Mr C’s long history of constipation.
• They asked one of the Home’s workers what they would do to address Mr C’s constipation. The worker said they thought a doctor would be called. There were no records of a doctor being called or Mr C being given the medication that had been prescribed for his constipation.
• The bowel chart showed that Mr C had not had a bowel movement from 7 to 10 September 2021 and from 29 September to 6 October 2021.
• Fluid charts were not filled in after 3 pm. The fluid charts showed that Mr C was not drinking enough fluids.
• Medication had not been signed off on the MARS sheets. The staff said they may have forgotten. The notes indicated that some medication had run out so the staff could not give the medication.
• The PRN protocol (medication that was administered when needed) was ‘not fit for purpose’. The pain medication protocol document was unclear and was not signed by a doctor.
74. On 27 October 2021, both councils were informed that the Home was going to close on 23 November 2021.
75. East Sussex Council’s social worker spoke to Mrs B on 28 October 2021. The social worker asked Mrs B whether she knew what was happening at the Home. Mrs B said she had received a call and was aware that the service would be closing.
76. Mr C moved to a new placement on 29 October 2021.

November 2021 – meeting

77. Kent Council held a ‘lessons learned’ meeting between professionals on 29 November 2021.
78. The meeting noted that one of the difficulties was that Mr C was placed outside of the funding authority’s area and this caused difficulties in communication between the different local authorities and NHS bodies. Service improvements were made to address this problem.

February 2022 – closure of the safeguarding enquiry

79. Kent Council formally closed the safeguarding enquiry on 28 February 2022 as it said the risk to Mr C had been removed. It said the allegation of abuse (neglect – acts of omission) by the Home had been partially confirmed.

Mrs B’s complaint

80. Mrs B initially complained in August 2021, but East Sussex Council said that, as Kent Council was already investigating a lot of the complaints through its safeguarding enquiries, it could not progress her complaint at that stage.
81. Mrs B contacted East Sussex Council again in December 2021 asking for answers to her complaint and then added two further complaints in August 2022.
82. I have summarised both councils’ responses to Mrs B and to the Ombudsman insofar as they are relevant to the complaint I am investigating.

Failure to keep her informed

83. Mrs B said she had not been kept informed about the safeguarding enquiries. She did not have the details of the enquiries and findings. She wanted to know exactly what safeguarding allegations were made, which allegations were upheld and how this had affected Mr C. Nobody had ever given her this information.
84. She said she found out about the Home’s closure on the news and should have been informed earlier.
85. Kent Council said:
• It had kept Mrs B informed throughout the safeguarding enquiries. She had been invited to the safeguarding conferences and had been sent the minutes of the conferences.
• Mrs B linked in with Mr C’s social worker (who worked for East Sussex Council) regularly…Kent Council stayed connected with Mr C’s social worker as Mrs B worked and could only be available during lunchtime. The Council ensured that the safeguarding conferences were held at lunchtime so Mrs B could attend.
• It could not say what the impact was on Mr C as he had limited communication and the Home had not updated his behaviour charts to establish if there was a pattern of behaviour.
86. In its response to the Ombudsman, Kent Council said Mr C’s social worker ‘was kept informed of the safeguarding enquiries and it was agreed that updates would be provided to the family through her as [Mrs B] was not available to be contacted during working hours.’
87. East Sussex Council said:
• Mr C’s social worker ‘was working diligently, liaising with Kent Council, fully recording her involvement and communication with you, particularly where your view was required.’
• However, there were occasions when its updates had not been as regular as had been expected.
88. East Sussex Council made the following service improvements as a result of Mrs B’s complaint:
• Remind the team of the importance of communication regularly and effectively with the family.
• Remind the team to act upon the information provided by the family, such as concerns that a provider and the team may not inform the family of incidents, and to ensure that all aspects of feedback from the family are recorded and acted upon.
• When someone is moved in an emergency, the allocated worker must ensure that health documentation and an inventory is transferred between the providers.
• The Council also allocated a new worker to address Mr C’s care and support, health, travel and accommodation needs.
89. In terms of the failure to inform Mrs B of the closure of the Home, Kent Council said the Home’s decision to close came quickly, during the review by the CQC. The Home had difficulties retaining staff and it had become unsafe. This then became a commissioning rather than safeguarding issue. Therefore, it was East Sussex’s Council’s responsibility to inform Mrs B.
90. East Sussex Council said the CQC had restricted the communications while the CQC investigation was taking place.

Poor care

91. Mrs B said she had been raising concerns about the Home’s care of Mr C for a long time and nobody took her seriously. She pointed out there had been multiple safeguarding enquiries and the Home was closed down which suggested that there were serious failures at the Home.
92. In its response to the Ombudsman, Kent Council said:
• The investigations into safeguarding referrals 1 and 2 were inconclusive and closed because of the lack of evidence and Mr C’s inability to communicate regarding what happened or the impact it had on him.
• It opened a safeguarding enquiry after receiving a referral in March 2021 and then received another 5 referrals which were added to the ongoing enquiry. It held the third safeguarding conference on 28 September 2021 and was due to close the enquiries.
• It then received another safeguarding referral in October 2021 and other concerns about the Home. The CQC became involved and the Home closed down. This superseded any further action in the safeguarding enquiry.

Loss of belongings

93. Mrs B said the Home had lost or damaged Mr C’s personal possessions, such as his travel Safespace, swing, trampoline, clothing and toys.
94. Neither council was able to answer this complaint after the Home had closed. They both noted that the matter was raised as part of the safeguarding enquiry.

Failure to give information to the new care home

95. Mrs B said East Sussex Council had not provided Mr C’s new care home with all the information it needed such as his medical notes relating to his hips and the bowel management plan.
96. The Council said the move happened very quickly and information about Mr C’s care needs, deprivation of liberty safeguards and oversight of health transfers such as GP and medications was provided to the new care home. However, it did not have a record that any health documentation was transferred. It said it would ensure that, if this happened in the future, the allocated worker would follow this up.

Analysis

Poor care

97. East Sussex Council commissioned the care so it was responsible if there was any fault in the way the care was delivered.
98. It is not the role of the Ombudsman to carry out a safeguarding enquiry. I have investigated whether there was fault in the care provided by the Home, but I have relied upon the evidence in the safeguarding documents.
99. In relation to safeguarding referral 1, the incident in the van, there was fault in the way the Home provided care as set out in the concerns raised by the police. Mr C should not have been left with one care worker in the van and he should not have been sitting next to a window. The care worker had not read the care plan properly and it is concerning that the care plan to restrict Mr C’s behaviour was not put in place until after the incident occurred.
100. Safeguarding referral 2 related to the incident when an agency worker was alleged to have reacted inappropriately to Mr C's behaviour.
101. I am of the view that the agency’s investigation into the incident was flawed and contradictory as it was not clear what the agency’s conclusions were and how it had reached them. Most concerning was the fact that nobody (neither the agency nor the Council) interviewed the Home’s care worker who made the referral.
102. I am also concerned about Kent Council’s position that, as the agency worker was no longer working for the agency, the risk was removed and no further investigation was needed. If allegations are made against a care worker, then the wider risk should have been considered as this care worker could move to another employer.
103. I can make a decision on the balance of probabilities and I accept the evidence of the Home’s care worker who said the agency worker reacted inappropriately when Mr C displayed challenging behaviour. I therefore conclude that there was fault and that the agency worker did not act in line with the care plan.
104. In terms of the other seven safeguarding referrals, I uphold the allegations that were made and conclude that there was fault in the way the Home delivered care to Mr C. The allegations were based on the Home’s records or on the witness evidence by professionals involved in Mr C’s care or on both. That is sufficient evidence, in my view.
105. I will not repeat the allegations but summarise the issues that, in my opinion, were of the greatest concern.
106. There was significant fault in the Home’s failure to refer Mr C to the relevant agencies such as the Learning Disabilities team, the Incontinence Service, the Speech and Language Therapists team, Physiotherapy and the Pain Management clinic. Mr C had been living in the Home since June 2019, but the referrals were not made until June 2021, two years later, and then only after a senior nurse made a safeguarding referral about the lack of referrals. I am of the view that this failure is shared by the Home and East Sussex Council as I would have expected the Council to ensure that the correct referrals had been made earlier.
107. The injustice that flowed from this failure was twofold. Firstly, it meant Mr C was not receiving the services, for example the mental health support, the learning disability support, the pain relief and so on.
108. Secondly, the failure also meant that the Home was lacking the necessary guidance to write Mr C’s care plan and provide him with appropriate care. Mr C had complex needs, for example, in relation to constipation, pain and behaviour and the Home needed the guidance from the agencies to meet those needs appropriately.
109. There was fault in the staffing at the Home. The Home relied heavily on agency staff which meant Mr C did not receive the continuity of staff which he needed. The care workers, whether they were employed by the Home or agencies, frequently admitted they had not read Mr C’s care plans. These failures meant that the staff were not always able to understand or meet Mr C’s needs when he displayed challenging behaviour. This left Mr C vulnerable to abuse and neglect.
110. There were examples of staff mistreating Mr C or failing to treat him in line with his care plan.
111. The Home failed to properly follow Mr C’s constipation plan which was fault. There were no bowel charts in place until August 2021 so the Home did not know whether Mr C was suffering constipation or not. There were no fluid records after 3 pm and the records showed Mr C was not drinking enough fluids which could have made his constipation worse. Staff did not give Mr C the necessary medication for his constipation and Mr C had long periods, up to seven days, of not having a bowel movement.
112. The Home knew that the constipation was one of the causes of Mr C’s pain so I cannot understand why it did not properly follow the plan to manage his constipation. This was a serious fault and meant that Mr C may well have been in pain and no action was taken.
113. The failure to follow the constipation plan was linked to a failure to properly provide him with pain medication when he needed it and to properly record Mr C’s medication.
114. This was highly concerning considering that Mrs B said she often gave Mr C pain medication several times a day when he was staying with her. I appreciate that there was a difficult balance to keep as pain medication was needed to address the pain caused by the constipation but the medication could also cause constipation. But this again showed why it was so important that the Home should have involved all the relevant agencies in Mr C’s care plan which it had not done.
115. There was further fault as the Home did not sufficiently engage Mr C in activities. The records of 7 October 2021 showed that Mr C had not been out for 11 days.

Safeguarding enquiry and communication

116. I note that Kent Council says it partly delegated the role of communicating with Mrs B about the safeguarding enquiry to Mr C’s social worker who worked for East Sussex Council. It appears, from East Sussex Council’s response that East Sussex accepted some of the responsibility for communication.
117. Mr C lacked the mental capacity to engage in the safeguarding enquiry and Mrs B was his representative.
118. Kent Council had a duty to keep Mrs B informed of the safeguarding enquiry, but the duty was far wider than that. The overriding principle of a safeguarding enquiry is that the adult at risk should be actively involved from the beginning of the enquiry. The enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative if they lack the mental capacity to be involved. Mrs B, as representative of Mr C, should have been at the centre of the enquiries from the outset.
119. There was fault in terms of the communication regarding the safeguarding enquiries and this related to the following issues.
120. Kent Council continuously referred, in its complaint correspondence to the fact that it invited Mrs B to safeguarding conferences, as evidence that she had been involved from the outset. However, Kent Council, did not organise the first safeguarding conference until 29 June 2021. This was 19 months after the first safeguarding referral which was received in November 2019 and by then six safeguarding enquiries had already been concluded or started. June 2021 was the first time when Mrs B was properly put at the centre of the enquiries and this should have happened sooner.
121. Mrs B said that, even after June 2021, she still did not feel that she was fully consulted or involved.
122. East Sussex Council partly upheld this complaint and said that there had been times when Mrs B had not been regularly updated so this was fault.
123. Towards the end of Mr C’s stay at the Home, Mrs B became increasingly worried about what was happening to Mr C, and, once the enquiries were closed, she still did not know what the allegations were and which allegations had been upheld.
124. I note that Council held a meeting for professionals on 29 November 2021 to learn lessons from the safeguarding, but did not involve Mrs B or hold a similar meeting with her. Neither Kent nor East Sussex Council informed Mrs B of its conclusions or what lessons had been learned. This was fault.
125. Mrs B then made a formal complaint to try to obtain this information, but both councils focussed on the disclosure of documents, which was a separate issue.
126. In terms of the communication of the closure of the Home, I find no fault in that respect. The CQC asked the agencies not to discuss matters while its inspection was ongoing and it appears matters progressed very quickly from there.

Loss of belongings

127. Unfortunately, as the Home has closed and I have not been able to access its records, I cannot add any great detail to the concerns about Mr C’s trampoline and Safespace.

Injustice and remedy

128. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions/service of the care provider, I have made recommendations to the Council.
129. The main fault I found related to the poor care provided by the Home, which was funded by East Sussex Council. Our remedy aims to put the person back in the position they would have been if the fault had not happened. Where this is not possible, we can ask a council to make a payment to symbolise the distress the person has been through because of the fault.
130. We normally pay up to £500 for distress but can recommend a higher payment. I recommend East Sussex Council pays Mr C £1000 as the fault in this case was particularly severe and prolonged and he was a vulnerable adult. I recommend East Sussex Council pays Mrs B £500 for her distress. I also recommend both councils pay Mrs B a further £300 (£150 each) for the fault in the communication.
131. The Home has closed down so there is no need to consider service improvements in this respect.
132. I note both councils have already made service improvements relating to communication between different agencies in cases such as this one where a person is placed outside of the funding authority’s area so I do not make any recommendations in this respect.
133. However, I recommend both councils remind relevant staff of the importance of keeping the adult who is the subject of a safeguarding enquiry at the centre of the enquiry.

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Agreed action

134. Both councils have agreed to take the following actions within one month of the final decision. They will:
• Apologise in writing to Mrs B for the fault.
• Pay Mrs B £300 (£150 by each council).
• Remind relevant staff of the importance of keeping the adult who is the subject of a safeguarding enquiry at the centre of the enquiry.
135. In addition, East Sussex Council will:
• Pay Mr C £1,000.
• Pay Mrs B £500.

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Final decision

136. I have completed my investigation and found fault by the Councils. The Councils have agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman