Summary: Mr X complained about how the Council arranged home care for and made safeguarding enquiries about his late father, Mr Y. The Council did not correctly explain the outcome of its enquiries to Mr Y’s family. This resulted in confusion for Mr Y’s family for which we said the Council should apologise, but Mr X did not want an apology.

The complaint

1. Mr X complained about how the Council arranged home care for and made safeguarding enquiries about his late father, Mr Y, in 2020. He said the Council did not:
• act quickly enough and keep to agreed timescales when arranging home care and adaptations so his father could leave the care home he was placed in by the NHS;
• proactively make safeguarding enquiries, as it only looked into this because the family reported it;
• apply its safeguarding procedures properly, as the Council made enquiries after the events rather than as a preventative measure;
• consider in its enquiries his father’s medical records, health problems, injuries, or how much his condition had declined during his short time in the care home;
• make its enquiries independently, as the Council only looked at the care home’s version of events without considering whether it would admit to any errors; and
• reach correct, accurate and legitimate findings in its safeguarding enquiries.
2. Because of the delays in removing his father from the care home, Mr X said his father deteriorated and then died, causing significant distress and upset to the family. He said the Council’s refusal to admit failings in its safeguarding process caused them further frustration. He wanted the Council to provide a full explanation and acknowledgement of any failings, or an explanation of why it believed what happened to his father was acceptable, if this was the case.

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What I have investigated

3. I have not investigated concerns raised by Mr X about decisions made by the NHS, or care funded and arranged by the NHS. I have only investigated the actions of the Council. The final section of this statement explains the reasons for this.

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The Ombudsman’s role and powers

4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of the NHS. However, 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, sections 25, 25(7), and 34A, as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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 considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Remedies.
11. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Partnership working between the Council and the NHS

12. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as ‘Section 75 Agreements’ and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils.  Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.  

Safeguarding enquiries

13. Section 42 of the Care Act 2014 says a council must make necessary enquiries if it has reason to think a person:
• may be at risk of abuse or neglect; and
• has needs for care and support which mean they cannot protect themself.
14. Councils typically follow the following safeguarding process.
1. Initial assessment – when concerns are raised with a council that a person is at risk of abuse or neglect, the council first decides whether the concerns appear to justify making enquiries under its safeguarding procedures. Councils often make this decision after arranging an initial strategy meeting.
2. Strategy meeting/ discussion and Enquiries – if the Council decides an investigation is necessary, enquiries can range from a conversation with the subject of the concern to a more formal multi-agency arrangement to seek input from other professionals. If it decides to investigate, a council should plan its investigation, decide the scope, gather relevant evidence, and determine the facts.
3. Case conference – the council reviews all information gathered, plans any further action, and agrees a protection plan for the person if needed. A council must decide whether it or another person or agency should take any action to protect the person from abuse or risk.
4. Review of protection plan – if a protection plan is agreed, this should be reviewed to ensure any agreed actions are implemented and decide on any further action required.
5. Closing the safeguarding – the process can be closed at any stage if the council decides it is not necessary to continue, or if it completes its enquiry and puts a protection plan in place.
15. Although the Council is the lead agency for making safeguarding enquiries it may need others to undertake them, such as health services. The Council keeps overall responsibility for leading the safeguarding process, and ensuring the body making the enquiries does so properly and the outcome is satisfactory. (Care and Support Statutory Guidance, Section 14)
16. Whenever a council receives a complaint or allegation of abuse, it should keep clear and accurate records of the action taken. There should be a clear record of past incidents, concerns, risks, and patterns. (Care and Support Statutory Guidance, Section 14)

The Council’s policy

17. Wirral Metropolitan Borough Council has a section 75 agreement in place with Wirral Community Health and Care NHS Foundation Trust (the Trust), as described at paragraph 12. This means some of its social workers are employed by the Trust but carry out statutory functions on behalf of the Council, such as safeguarding enquiries. The Council keeps overall responsibility for functions carried out on its behalf.
18. The Council’s safeguarding procedure says:
• where safeguarding concerns are simple, low risk, and involve three agencies or less, safeguarding enquiries can progress via a strategy discussion where the social worker contacts relevant parties and acts as a lead investigator. Face-to-face strategy meetings with professionals only need to take places when the issues are considered complex and high-risk;
• the Council should keep clear, factual records of the process and decision-making, and the views of the adult and/or their representative should be sought and recorded;
• if the Council gathers information during its enquiries which suggests there is a lack of evidence that abuse has occurred, or no risk of harm is identified, it can decide to exit the safeguarding process. This decision should be based on defensible decision making with clear evidence that the allegation is unfounded and therefore no further action is needed. The Council should record its rationale and share this with all involved, including the adult and/or their representative; and
• when the Council closes its safeguarding enquiries, it should ask the adult and/or their representative for feedback on the process and record this.

My findings

The Ombudsman’s jurisdiction

19. As described at paragraph 5, we can investigate the actions of Trust employees when carrying out functions of the Council. In this statement I refer to the actions of the Council, which also includes the actions of NHS social workers acting on behalf of the Council.
20. The events complained about began more than twelve months before Mr X brought his complaint to the Local Government and Social Care Ombudsman (LGSCO). Mr Y’s family complained to the hospital and then the Parliamentary and Health Service Ombudsman (PHSO) within six months of the issues complained about. The PHSO then referred the complaint to the LGSCO to consider parts of the complaint that were the responsibility of the Council, not the NHS. I understand why Mr X may not have known to raise the complaint with both Ombudsmen. Although Mr X’s complaint to the LGSCO is late, he did raise his concerns in good time, and separately pursued his complaint about the actions of the Council as soon as he was told he should do so. Therefore, I am satisfied that there are good reasons to consider his complaint now.

Delays in arranging home care

21. Mr Y was discharged from hospital by the NHS to a care home in January 2020, so the Council could assess his needs before returning home. Four days later, the Council assessed Mr Y, with his daughter, Ms B, present. A physiotherapist was due to visit six days after this to assess Mr Y’s home for adaptations to support him moving home. The visit did not go ahead which the Council said was due to staff sickness and miscommunication. The visit was rearranged and completed within three days of the missed appointment.
22. There then followed eleven days of planning and consultation with relevant professionals about how to arrange Mr Y’s home care to meet his needs. The Council agreed with Ms B it would commission a package of home care. It also completed adaptations to Mr Y’s home. The next day, Ms B told the Council Mr Y’s family instead wanted to commission a self-funded package of care and choose their own care provider. Ms B asked the Council to support her to arrange this. The Council began contacting the care providers suggested by Ms B the same day and kept her updated on the progress of this. The next day, Mr Y was taken to hospital following a fall. The day after this the hospital admitted Mr Y and decided he would not return to the care home.
23. Mr Y’s placement in the care home lasted 27 days before he was re-admitted to hospital. The Council completed adaptations to Mr Y’s home and was ready to arrange a package of home care within 25 days. It was then working to accommodate Mr Y’s family’s preferences about his care and acted quickly to do so. I recognise there was a delay of three days in the physiotherapist home visit. However, this was not a significant delay, and Council records show it apologised for this and quickly arranged another visit. I consider the Council completed the arrangements for Mr Y’s home care in good time and I found no fault with the length of time taken. I also noted Council records showed Ms B was told the process would take about four weeks when Mr Y first went into the home. Therefore, the length of time taken was in line with what the family were told to expect.

Safeguarding

24. From the start of Mr Y’s placement in the care home, his family told social workers they felt he was not happy in the care home and wanted him to return to his home. However, they did not initially raise any allegations of abuse or neglect by the care home. Council records show that:
• eleven days into Mr Y’s care home placement, the care home raised a safeguarding alert due to an unwitnessed fall, which the Council decided not to make further enquiries about; and
• fifteen days after this, the care home told the Council there had been two more unwitnessed falls. The first of these resulted in an x-ray referral and the second resulted in Mr Y’s return to hospital. Safeguarding alerts were raised for these incidents. The Council again did not progress these to full enquiries.
25. A council must make safeguarding enquiries where it has reason to think the criteria described at paragraph 13 are met. Council records about the three safeguarding alerts raised by the care home show it properly considered these alerts and decided not to progress with safeguarding enquiries. There is no evidence to suggest the Council ignored relevant evidence available at the time of these falls. Council records show Mr Y was elderly, had dementia, had recently had a stroke, and was in a new environment following his stay in hospital. I am satisfied the Council had no information at the time which would have caused it to be concerned about the falls and take further action.
26. Six days after Mr Y’s return to hospital, the hospital raised a safeguarding concern with the Council on Ms B’s behalf. The Council considered this and decided to progress to its full safeguarding enquiries process. The Council completed its enquiries within two weeks and decided there was no evidence to suggest neglect or abuse had occurred. It discussed its outcome with Ms B and noted she was not satisfied with the outcome. Mr Y remained in hospital and died seven weeks after he was re-admitted.
27. Mr X raised various concerns in his complaint about how the Council carried out its enquiries following the concerns raised by Ms B. The Ombudsman is not an appeal body, and it is not our role to decide whether neglect or abuse has taken place; that is the Council’s responsibility. We do not take a second look at a decision to decide if it was wrong. We investigate the processes the council followed in making its safeguarding enquiries, to assess whether it made its decision properly. I have not looked at the quality of care provided to Mr Y in the care home or sought to establish what happened to him in the care home. I do not need to do so to decide whether the Council followed the correct process in making its safeguarding enquiries. Also, as described in the final section of this statement, the care was arranged and funded by the NHS and not the Council. Therefore, consideration of the quality of this care falls outside of the LGSCO’s jurisdiction.
28. I have considered the typical safeguarding process the Council should have followed, as described at paragraph 14. In this case, the Council:
• decided a multi-agency meeting was not required;
• consulted with Ms B to discuss her concerns on Mr Y’s behalf;
• gathered and considered relevant documentary evidence; and
• decided it had found no evidence to suggest neglect or abuse had occurred, so closed the safeguarding process and did not put in place a protection plan or take further action.
29. Mr X said the Council did not consider all the information it should have in making its enquiries. He felt the Council should have considered Mr Y’s hospital medical records for any evidence of deterioration during his time in the care home, not just the records from the care home itself. Council records show it:

1. asked the hospital safeguarding team for more information about Mr Y’s re-admission to hospital when it was considering whether to progress with safeguarding enquiries;
2. spoke to the hospital safeguarding team again and decided it should progress with enquiries;
3. requested Mr Y’s discharge records from the hospital to look at his condition before he was discharged to the care home; and
4. compared the discharge records with the care home’s records for the duration of his stay at the home.

30. As described at paragraph 27, it is not our role to take a second look at the evidence the Council considered. We must consider whether the Council followed the correct processes and considered everything it should have in reaching its decision. The Council recorded its consideration of evidence in its report and properly explained why it did not find evidence of abuse or neglect. When a council completes safeguarding enquiries, as described at paragraph 14c, it must decide whether any action should be taken to protect the person from abuse or risk. In Mr Y’s case, the Council decided no further action was required. The hospital had already decided he would not return to the care home five days before it submitted the safeguarding referral on behalf of Ms B.
31. One of the safeguarding concerns raised by Ms B was that Mr Y had lost weight while in the care home. The Council considered records of Mr Y’s weight in its enquiries and found his weight had decreased by 0.6kg. It did not consider this weight loss to be significant enough to evidence abuse or neglect. It also found the care home had put measures in place to support Mr Y with nutrition to address concerns about his weight. I found no fault in how the Council considered this issue or explained its reasoning. However, the Council recorded that in its discussion with Ms B about the outcome of its enquiries, it wrongly told her Mr Y had lost 0.04kg during his time in the home. The Council said it did tell Ms B the correct weights from before and after Mr Y was in the home, but recognised it told her the calculated difference between these incorrectly. The incorrect amount of 0.04kg was repeated to Ms B throughout the discussion. This incorrect information provided to Mr Y’s family was fault, which caused confusion at a distressing time. I decided the Council should remedy the distress this caused with an apology and explanation to Mr Y’s family. However, Mr X said he did not want an apology from the Council.
32. Mr X also said the Council did not make its enquiries independently. There is no evidence to suggest the Council was not independent in how it carried out its enquiries. The Council properly considered the information provided by the care home and recorded its consideration of this. I am satisfied the Council had no information at the time which should have caused it to doubt the validity of the information provided by the care home.

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Final decision

33. I have completed my investigation. There was fault by the Council which caused Mr Y’s family avoidable confusion. I recommended the Council apologised for this injustice, but Mr X did not want an apology.

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Parts of the complaint that I did not investigate

34. Mr X also raised concerns about:
• the decision to place Mr Y in the care home originally; and
• the quality of care provided to Mr Y in the care home.
35. The decision to place Mr Y in the care home was made by the NHS, and the care home place was funded by the NHS. As described at paragraph 5, we cannot investigate the actions of the NHS where it was not acting on behalf of the Council. NHS Trust staff who decided about Mr Y’s discharge from hospital and stay in the care home were not carrying out statutory functions on the Council’s behalf. Therefore, I did not investigate these concerns. Mr X made a separate complaint to the Parliamentary and Health Service Ombudsman (PHSO), which is the body responsible for handling complaints about the NHS.

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Investigator's decision on behalf of the Ombudsman