Decision Date: 5 November 2024
Summary
Mr X complained about the care provided to his relative, by a Hounslow-commissioned care provider. The LGSCO found fault as Hounslow Council failing to investigate the complaint properly, causing avoidable distress and frustration.
What happened
Mr X represented his family member, Mr Y, who had physical disabilities and learning difficulties. Mr Y lived outside the Council’s area but had care and support, arranged and funded by the Council, in a supported living care package, with a contribution from Mr Y.
Mr and Mrs X held Lasting Power of Attorney for his finances and health/welfare.
Mr Y had moved to his new address in late November 2022. The care provider provided support with food preparation, medication management, dressing, personal care, and assistance accessing the community.
At the end of January 2023, the Council conducted a review of Mr Y’s situation, noting some minor issues after the move, but recording that Mr Y appeared happy in his new house.
In November 2023, Mr X contacted the Council, raising concerns about various aspects of care received from Provider A. The Council arranged a meeting with the family in mid-December 2023 to discuss these issues.
In January 2024, the Council provided a formal response, agreeing to waive Mr Y’s Care Act contribution charges for his services at his current address, until a more suitable alternative could be found. Once Mr Y moved, he would be expected to contribute based on any financial assessment done at that time.
The Council explained that the family’s preferred option for Mr Y’s next accommodation—a one-bedroom flat with wheelchair access—would be difficult to secure.
The Council’s response also stated that a ‘quality alert’ had been raised regarding the care issues. These were under investigation, and the Council would keep the family informed. The specific points raised included:
- Inadequate staffingfor the number of people in the house.
- Physiotherapy exercises were not being provided. [There is no mention in the report about the exact contractual requirements and terms.]
- A carer had left Mr Y on a bus during a community outing.
- Windows could not be opened and the heating was running during the summer.
- Personal care was not being delivered properly.
At the end of May 2024, Mr Y moved from his former address to new accommodation.
At the end of June 2024, the Council requested feedback from Provider A on the complaint points outlined in the Council’s January 2024 response. Provider A replied in an email stating:
- Mr Y’s physiotherapy had been arranged by the family and delivered online at unscheduled times, with staff only assisting Mr Y in accessing sessions. [It is unclear what the exact contractual expectations were of the staff.]
- Staff did not use the same gloves for personal care and food preparation, as these activities were done at different times and it would have meant that staff were wearing the same gloves for 10 hours.
- Mr Y was accidentally left on a bus when he had not been following staff instructions, leading to an update on his risk assessment to address this in the future. No complaint was raised at the time of this incident in December 2022.
- When Mr Y moved in, all window locks except one were functional, and the faulty lock was repaired promptly. The heating was controlled by a wall thermostat, rather than centrally by a Director of the company, as had been suggested.
- The care packages were not understaffed. At no time was there one staff member to five residents. An additional staff member was brought in to help Mr Y access the community. [There is no mention of the costing model or any contractual terms as to the number of staff who should have been on duty, in the report.]
In response to these concerns, the Council stated that an officer had conducted an unannounced visit to Mr Y’s address. The Council reported that the visit found no issues with staffing or the alleged misuse of gloves by carers. Also, the officer had noted that senior management controlled the heating system, with one boiler covering two locations, and that window openings were restricted to comply with standard requirements. It did not seem likely that the specifics of the visit had been communicated to Mr X.
What was found
The LGSCO asked the Council whether it had considered investigating the issues raised under a Section 42 investigation (safeguarding).
The Council stated that it deemed a ‘quality alert’ to be appropriate as a response in this situation and provided no further reasoning for this decision.
The LGSCO urged the Council to explain its actions following the investigation that arose from the quality alert. The Council provided a quality alert report in early December 2023, before the family had even met with the Council to discuss the concerns. It was also before the complaint response, which stated that the investigation was ongoing and that the family would be kept updated.
The quality report outlined the complaints raised and noted that a review conducted in January 2023 resolved a few toileting difficulties. However, the Council did not contact Provider A to examine these issues any further. According to the report, there were no objectives needing to be reached, because it was known that Mr Y wanted to move back to his local area.
Furthermore, the report noted that the Council did not investigate quality alerts raised against providers operating outside its borough, as was the situation for Provider A. It concluded by stating that the Council “was already aware of this provider and had stopped using them earlier this year.” It also mentioned that the Council had advised children’s services about this. The Council had since confirmed that the quality alert did not lead to any further formal investigation.
The LGSCO noted that the Council’s approach to this matter appeared unclear. The report had already been finalised at the time the Council claimed the investigation was ongoing. It had already decided not to pursue an investigation, as Provider A was operating outside its borough, and Mr Y was known to want to move. Given this, and with no evidence to the contrary, the fact that the Council had stopped using Provider A and informed its own children’s services department of its decision suggested it should have taken immediate action to ensure the care provided met appropriate standards. This responsibility remained, regardless of whether Mr Y wanted to move or whether the provider was outside the borough. The Council still had a duty to ensure Mr Y received care that complied with the fundamental standards of care.
The Council did not provide any evidence of daily care records for the requested sample months, meaning it is not possible to assess the quality of care delivered to Mr Y.
The LGSCO found that the report sent by Provider A to the Council in late June 2024 – over seven months after the complaint was raised – did not serve as a substitute for the investigation the Council had initially stated was underway. The LGSCO asserted that it was likely that Mr X still felt uncertainty regarding the overall care provided to Mr Y and the specific concerns that he had raised.
The LGSCO was satisfied that the lack of communication with the family, uncertainty, and the absence of decisive action constituted fault. This caused avoidable distress and frustration for Mr and Mr Y, leaving both unsure about the outcome of any investigation. The Council agreed to take the following action within four weeks of the LGSCO’s final decision:
- Issue an apology to Mr X and Mr Y for the injustice caused by the identified fault.
- Make a symbolic payment of £500 to Mr X, on the family’s behalf, to reflect the uncertainty and distress caused by the fault.
- Remind officers and managers to investigate concerns promptly when raised about care providers acting on the Council’s behalf.
- Review the Council’s policy of not investigating quality alerts when those receiving care are hoping to relocate or have been placed out of the area.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
It is correct that a council is not in charge of safeguarding with regard to safeguarding alerts outside of its geographical area. But that begs the question as to what is the difference between a concern as to ‘quality’, or value for money or contractual breach, as between the purchaser and the provider, and what amounts to an obvious safeguarding concern.
The distinction is ultimately within the decision-making sphere of the Council, as it cannot investigate every single slight falling short of contractual requirements by every provider. But this decision-making is subject to public law principles of rationality (in this context, unreasonableness in light of the purpose of the statutory provision in play – which is protection from abuse or neglect)– and this could have been raised by the commissioner, with the safeguarding lead of the council on the spot, for its own safeguarding functions to be discharged.
We feel that the Ombudsman also felt that anyone’s being left on a bus if wheelchair bound would be sufficient to strike any local authority anywhere as a safeguarding concern, whether or not any complaint was raised about it at the time with the provider!
The Ombudsman could have referred to the Guidance, which says this about the difference, and emphasises that safeguarding does not obviate the need for commissioners’ monitoring of what they have actually bought with public money:
14.9 Safeguarding is not a substitute for:
- providers’ responsibilities to provide safe and high quality care and support
- commissioners regularly assuring themselves of the safety and effectiveness of commissioned services
Also, this paragraph of the Guidance is useful:
14.44 Local authorities may choose to undertake safeguarding enquiries for people where there is not a section 42 enquiry duty, if the local authority believes it is proportionate to do so, and will enable the local authority to promote the person’s wellbeing and support a preventative agenda.
It is the duty of the authority on the spot where the person is living, which is responsible for safeguarding functions.
Section 42 makes that an obligation regardless of the person in the area who is thought to be at risk of abuse or neglect not being ordinarily resident there.
s42 Enquiry by local authority
- This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)—
The Ombudsman’s investigator’s report recites as follows: “There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area.” And it goes on to say that the fact that the person’s ordinary residence is deemed to remain with the original authority is the reason that the council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.
In fact, the accommodation in supported living is not ‘provided’ or ‘arranged’ (in the legal sense) by any council at all, whether the original one, or the one on the spot. It is generally secured under a tenancy by the person or their attorney signing on the person’s behalf.
The reason the original authority continues to be responsible for the care is because that is what the Care Act provides for when someone’s needs are regarded by the original council as needs which can only be met in specified accommodation of the type in question (here, the type defined as supported accommodation) and that is the sort of accommodation where the person is now in fact living. But that does not mean that the original council remains responsible for safeguarding, because the Care Act and the Guidance make it clear that that is NOT the case – it makes sense to ensure that there is an authority with scrutiny responsibilities for everyone in their actual area, rather than leave it with the commissioner.
This is why Hounslow did not have the obligation to consider launching a s42 enquiry itself, which the LGSCO should understand, we think, even if Hounslow staff did not know how to explain their own decision! Another indication of a startling lack of knowledge on the part of the Ombudsman, in our view, is referring throughout to the accommodation as a ‘placement’, when that is misleading and not reflective of how supported living actually works.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Hounslow (23 016 743) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service? Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!