Summary: Ms C complains the Council took unnecessary safeguarding action, did not follow her advice, and placed her son, Mr D at risk. The Council is not at fault for carrying out safeguarding, there are faults however in the process it followed and in its communication with Ms C. To remedy the complaint the Council has agreed to apologise to Ms C, make a symbolic payment, and remind staff about the policies they need to follow when completing safeguarding.

The complaint

1. The complainant who I refer to as Ms C complains about services provided to her son, who I refer to as Mr D. Ms C complains the Council commissioned day service, run by the National Autistic Society, the “Care Provider”, failed to provide suitable support to Mr D. Ms C complains the Council failed to address and listen to her concerns and took safeguarding action against her following her complaint.
2. Because of the Council’s failures Ms C says Mr D had to reduce his day service and had physical pain and discomfort from the diarrhoea caused by cross contamination of food. Ms C says she has had time, trouble, frustration and worry the Council’s actions put Mr D’s health at risk. Ms C also says she has had to pay for independent medical reports.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. I spoke with Ms C about her complaint and considered information she provided. I made enquiries of the Council and asked it questions. I considered:-
• the Council’s response to my enquiries;
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• Council’s Safeguarding Policy and Complaints Policy;
• case records, minutes of meetings and communication between the Council and Ms C.
8. Ms C, the Care Provider, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. Mr D lives with his parents. Mr D has complex needs and the Council commissions day support from the Care Provider and provides additional money so Mr D can employ a Personal Assistant (PA).

What should have happened

Safeguarding

10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
11. Section 14.80 of the Care and Support Statutory Guidance says,
12. “The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse. If the adult has substantial difficulty in being involved, and where there is no one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement.”

Mental Capacity Act

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make some 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. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. Local authorities should ensure they respect the first principle of assuming capacity. However, it is important to carry out an assessment “when a person’s capacity is in doubt” (Code para 4.34)

Care Plan

15. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Council complaint procedure

16. Paragraph 5 Kent Adult Social Care and Health Complaints Procedure April 2017 says, “The safeguarding procedures and protection of an individual take precedence over the Directorate’s complaints procedures. Therefore the complaint may be held in abeyance, depending on the circumstances of the case, until such time as the safeguarding procedures have been concluded.”

What happened

17. Mr D went trampolining with the Care Provider one day a week. After trampolining Mr D and his peers ate their own food on tables in a food hall. The Council says staff cleaned the area where Mr D ate his food, and ensured he washed his hands and used his hand gel before eating. Ms C noticed Mr D was getting bouts of diarrhoea. She completed a diary and noted these coincided with Mr D going trampolining. Ms C says she found out Mr D was going to a food court. Ms C says Mr D has food intolerances and is affected by cross contamination. Ms C wrote to the Council on 25 November 2022 explaining the difficulties caused by cross contamination of food. To avoid this she said she would pick Mr D up from trampolining so he could eat his food at home.
18. On 28 November the Care Provider said because of the safety concerns it would treat Ms C’s complaint as a safeguarding concern. The Council asked some questions but did not progress the matter as a section 42 enquiry or a complaint.
19. During a meeting in January 2023 the Council questioned Ms C’s account of Mr D’s diarrhoea, his general attendance at day services and a Health Action Plan produced by Mr D’s GP about his intolerances. The Council asked Ms C to contact Mr D’s GP to get an updated medical report and referral to a dietician. Ms C says the Council asked her to get a private medical report but the Council disputes this.
20. On 8 February following another bout of diarrhoea Ms C complained to the Council. Ms C also complained that an unqualified officer had said Mr D had capacity but not provided a copy of the assessment. Ms C complained the officer was intimidatory and was forcing Mr D to go to day care when he was unwell. Ms C reduced day care provision from two days to one; and PA support by four hours per week.
21. Following the complaint the Council raised a safeguarding concern but because of unforeseen circumstances took no further action until 14 February. The Council says its action was not in retaliation to Ms C’s complaint and the officer involved was unaware of the complaint when raising the concern.
22. The Council wrote to Ms C on 6 March advising that because of the seriousness of her concerns it would deal with them through safeguarding. Once completed and if suitable it would then respond to the complaint. An independent medical report dated the same day set out Mr D’s intolerances and confirmed that air born cross contamination of foods could affect his bowel movements. It does not appear the Council was aware of this report until sometime later. The Council says it completed a capacity assessment in May but did not fully record the outcome.
23. In June the complaint department told Ms C the safeguarding investigation had ended, and it would now deal with her complaint. At this point the Council had not told Ms C the result of the investigation and apologised for the error. The Council later explained it was taking no further safeguarding action. It would however assign a new social worker to complete a capacity assessment and if necessary, a best interest assessment about Mr D’s food intolerances and attending activities.
24. The Council responded to Ms C’s complaint on 27 June saying there was no fault in its actions. It did not ignore medical information, pressurise Mr D to attend activities when he was unwell, and the officer involved always acted appropriately.

Is there fault causing injustice?

25. The Ombudsman cannot challenge a properly made decision. When Ms C raised her concerns about the effect of cross contamination on Mr D the Care Provider explained what actions it was taking to reduce risk. It did not however complete a risk assessment setting out the risks, how it could minimise them, and if necessary, what further information it needed. The failure to carry out a risk assessment at this time is fault.
26. Ms C offered to pick Mr D up from trampolining so he did not have to go to the food court. The Council do not appear to have fully considered this during the complete period of the complaint. The failure to do so was fault.
27. Because of these faults Ms C and Mr D have the uncertainty the Council could have taken actions which would have allowed Mr D to continue day care on a third day.

Safeguarding

28. When Ms C raised her first concerns in November 2022 the Care Provider treated them as a safeguarding concern. The Council’s complaint process and safeguarding procedure allows for this to occur. There is therefore no fault in the initial decision. However it appears that neither the Care Provider nor the Council took further substantive action either to investigate the complaint or progress the safeguarding concern as a safeguarding enquiry. It also did not update Ms C about its actions. These failures amount to fault.
29. The Council held a meeting in January 2023 where it questioned Ms C about her account of Mr D’s difficulties. Ms C says the Council forced her to get private medical reports. I have considered the meeting minutes and find nothing to suggest the Council told Ms C to pay for private reports. I therefore cannot ask the Council to reimburse Ms C for her costs. I do however acknowledge this is how Ms C may have felt at the time.
30. Following this meeting Ms C made a formal complaint and the Council started section 42 enquiries. Ms C says this was in retaliation to her complaint. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened. On considering the documentary evidence I cannot say on balance the Council acted in retaliation to the complaint. The Council had valid concerns and followed its safeguarding procedure.
31. The safeguarding procedure stresses the importance of involving the vulnerable person, assessing their mental capacity, and where suitable getting an advocate. While the Council includes these actions as follow up action to the safeguarding enquiry and did later attempt to get Mr D a capacity assessment and advocate, it did not take them as part of the enquiry process. The Council failed to have a person centred approach and this amounts to fault.
32. Because of these faults the Council did not properly consider Mr D’s views and he lost an opportunity to be involved in the process. Ms C also has the uncertainty that had the Council approached Mr D may have been able to confirm some of her concerns.

Issues related to the Officer

33. Ms C complains about the officer involved during the period of the complaint and questions the officer’s lack of a qualification. The Mental Capacity Act 2005 and the associated Code of Practice does not say assessors need a qualification. Anyone assessing does however need to follow the guidance.
34. On balance I consider the officer was at fault for making a general assertion about Mr D’s capacity. I consider there was sufficient evidence to rebut the presumption of capacity. It appears from the records that Mr D may have capacity to make some decisions but not others and saying Mr D had capacity caused Ms C confusion and frustration.
35. The officer was entitled to ask about why Mr D was not attending activities and from the recording I do not consider they were intimidatory or unnecessary. I acknowledge however that Ms C was upset by the questioning.

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Agreed actions

36. I consider there was fault in the Council’s actions and the Care Provider acting on behalf of the Council which has caused Mr D and Ms C injustice. 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 Care Provider’s actions, I have only made recommendations to the Council. The Council has agreed to the following actions.
37. Within one month of the final decision the Council will:-
1. apologise to Ms C and Mr D for the failures I have identified;
2. pay Ms C £350 for the time, trouble, frustration, and anxiety caused by the Council’s actions;
3. if not yet completed assess Mr D’s capacity to make decisions about attending activities.
38. Within three months of the final decision the Council will:-
1. remind and if appropriate provide training to staff members about
1. the importance of including vulnerable people within the safeguarding process;
2. assessing mental capacity in line with the safeguarding policy;
3. providing an advocate in line with the safeguarding policy.
2. review how safeguarding concerns were acted on in this complaint in particular the initial delay after the November 2022 concern;
3. remind staff and the Care Provider about the importance of completing risk assessments when issues are raised.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I consider the Council and the commissioned Care Provider acted with fault which caused Ms C and Mr D significant injustice. I consider the actions above are suitable to remedy the injustice caused. I have completed my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman