Summary: We will not investigate this complaint about safeguarding following an incident in private residential care. This is because we are satisfied by the actions already taken so investigation would not lead to a different outcome, that there is not enough evidence of fault to justify investigating and we cannot investigate complaints about personnel issues.

The complaint

1. Mrs Y complained on behalf of her late father, Mr X, that the Care Provider:
• Delayed in making a referral about a safeguarding incident to the Care Quality Commission (CQC) ;
• Delayed in doing an internal investigation until after external investigations by the police had ended;
• Failed to update Mrs Y on the outcome of its internal safeguarding investigation;
• Allowed the staff member involved in the incident to return to her job despite admitting they had hit her father; and
• Handled her complaint poorly, giving responses which were confusing and contradictory.
2. Mrs Y says the incident and the problems caused her father distress, which in turn caused her significant upset.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
7. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered information Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

9. Mr X had dementia and lived in the Care Provider’s residential care home. In August 2022, there was a safeguarding incident, where Mr X was struck by a staff member, A, after Mr X pulled on A’s hair and refused to let go. The incident was reported as a safeguarding concern to the home’s manager and to the police. The Care Provider contacted Mrs Y and she came to the care home to support Mr X.
10. The following day the Care Provider reported the incident to the Local Authority safeguarding team. A week later the incident was reported to the CQC. Mr Y was moved to an alternative Care Provider shortly before he died in September.
11. Mrs Y complained to the Care Provider in November. The Care Provider gave its first response at the end of December. In its response the Care Provider said it had made a safeguarding referral to the Local Authority on the same day as the incident as it was a Sunday. It said it had not considered the incident to be suitable for the emergency safeguarding team. It said actions had been taken immediately to safeguard all parties involved. It did however apologise for not having updated Mrs Y on the progress and outcome of its internal investigation or informed her that A had returned to work. It said it would consider this a lesson learnt and ensure updates were provided in future. Mrs Y said she was unhappy with the complaint response and asked the Care Provider to consider the complaint further.
12. After Mrs Y did not receive anything further from the Care Provider, she contacted us in February 2023. We asked the Care Provider to respond further, which it did in April. It apologised for any confusion and the lack of response in its complaint handling. It explained how it had dealt with A during its investigation and why it had invited A back to work. It said it had not investigated internally until after the police investigation was complete as it did not wish to speculate or interfere with its outcome. It agreed that it had delayed in referring the incident to the CQC and apologised. It also apologised for not having told Mrs Y the outcome of its own investigation and agreed to ensure families were kept informed in future. As she remained unhappy, Mrs Y approached us again in April.

Analysis

13. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint if it is about a personnel issue so we cannot investigate the Care Provider’s decision to allow the staff member to return to her role within the care home.
14. Mrs Y has complained about the Care Provider’s decision to wait until after the external investigation, particularly by the police, had ended before it began its own internal investigation. The Care Provider explained its rationale for this in its complaint response, that it did not wish to interfere with any police or other external investigation.
15. We cannot question whether a council’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. In this case, the Care Provider took steps to interview staff to ensure evidence for an investigation was collected but as there was a police investigation, with a potential for criminal charges, decided this would take precedence over any internal investigation. As the Care Provider has considered the issue and has been able to explain its views to Mrs Y, it is unlikely we would find fault with its decision, even though Mrs Y disagrees with it. Consequently, we will not investigate.
16. The Care Provider has however, accepted fault in its delay to make a referral about the safeguarding incident to the CQC and in its failure to keep Mrs Y updated on the progress and outcome of its own internal investigation into the incident. It has agreed to learn from this to ensure referrals are made in a timely way and to keep families updated in future internal investigations.
17. This is a suitable and proportionate remedy to this complaint, which has aimed to recognise the fault, remedy the injustice caused to Mrs Y and ensure that the problem does not recur. The actions taken in response to these two complaints are satisfactory it is unlikely further consideration of this complaint would lead to a different outcome. Consequently, we will not investigate these issues.
18. As we are not investigating the substantive matter, as explained above, it is not a good use of public resources to investigate how the Care Provider dealt with Mrs Y’s complaint.

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Final decision

19. We will not investigate Mrs Y’s complaint because we are satisfied by the actions already taken so investigation would not lead to a different outcome, that there is not enough evidence of fault to justify investigating and we cannot investigate complaints about personnel issues.

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Investigator's decision on behalf of the Ombudsman