Summary: Mr X complained about how the Council dealt with safeguarding allegations involving his mother, Mrs Y. He complained the Council charged her for remaining in a care home while it completed the investigation. Mr X said the Council bullied him and made false allegations to the Office of the Public Guardian. He also complained about the Council’s complaint handling. Mr X said this caused him distress. There was fault in the way the Council did not inform Mr X about the financial implications of the residential placement and delays in the complaint handling. This frustrated Mr X. The Council has already remedied this fault.

The complaint

1. Mr X complained about how the Council dealt with safeguarding allegations involving his mother, Mrs Y. He complained the Council charged her for remaining in a care home while it completed the investigation. Mr X said the Council bullied him and made false allegations to the Office of the Public Guardian. He also complained about the Council’s complaint handling. Mr X said this caused him distress.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a Council’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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
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. I have exercised discretion to consider this case because of the delays in the Council’s complaint handling.

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How I considered this complaint

8. I read Mr X’s complaint and spoke to him about it on the phone.
9. I considered information provided by Mr X and the Council.
10. Mr X 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

11. 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)
12. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

13. 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. 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. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

15. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
16. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

17. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
18. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
19. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
20. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
21. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
22. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

23. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
24. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
25. The Council safeguarding policy states the alleged person to have caused harm has a right to know what allegations were made and would usually inform them at stage three of the investigation.

What happened

26. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
27. Mr X lived with Mrs Y and cared for her. Mrs Y visited a residential care home for respite on different occasions. During a respite stay in November 2021, the Council received safeguarding allegations concerning Mrs Y’s wellbeing. The Council started a safeguarding investigation. The care home informed the police. The Council spoke to Mrs Y who stated she wished to remain in the care home. Mr X wanted Mrs Y to return home.
28. The Council continued to visit Mrs Y to gather her views. The police also visited Mrs Y. Mrs Y repeatedly stated she wanted to remain at the care home.
29. The police interviewed Mr X in December 2021. The police decided it would not take any further action.
30. In January 2022, Mr X agreed it was in Mrs Y’s best interest for her to remain living in the care home.
31. The Council ended its safeguarding investigation in February 2022. It noted Mrs Y remained in the care home and this removed any risk.
32. Mr X complained to the Council in April 2022. He said the Council kept Mrs Y in the care home but then charged her for the stay. He said the Council had not approached him about the concerns. He said Mrs Y had dementia and often made untrue allegations because of this. Mr X also complained about the social worker allocated to the case.
33. Mr X chased the Council for a response to his complaint in June 2022.
34. The Council contacted Mr X in December 2022 and apologised it had not responded to the complaint. It explained the reason was capacity issues in the Council and the death of an officer.
35. The Council responded to the complaint in March 2023. It confirmed Mrs Y had capacity to decide where she lived, and it was her choice to live in the care home. The response upheld the element of the complaint about the costs of the stay during the safeguarding investigation. The response stated the Council had a series of safeguarding concerns and investigations and it was ensuring Mrs Y was safe. The Council agreed to change the allocated worker and accepted it did not discuss the costs with Mr X. The Council accepted the delays in the complaint response. The Council agreed to remove the invoice and pay Mr X £300 for the complaint response delay.
36. Mr X said if the Council had contacted him about the accusations he could have explained. He said the Council contacting the Office of the Public Guardian was reckless and malicious.
37. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to remove the invoice, withdraw allegations to the Office of the Public Guardian, follow the complaint procedure and compensate him.
38. In response to my enquiries the Council stated Mrs Y decided to remain living in the care home and it acted on those wishes. The Council cited the Mental Capacity Act Code of Practice and the Care and Support Statutory Guidance which both say the Council should immediately report safeguarding concerns about a person who has power of attorney to the Office of the Public Guardian. The Council confirmed it had removed the invoice for the care home placement during the investigation and paid Mr X the £300 it offered him.

My findings

Charges

39. The Council accepted it did not provide Mr X with enough information regarding the charging at the care home during the safeguarding investigation. This is fault. The Council removed the invoice. This is suitable remedy for the fault.

Complaint handling

40. The Council has accepted the complaint process was delayed. This is fault. The Council has already paid Mr X £300. This is suitable remedy for this fault.

Safeguarding

41. I appreciate Mr X is upset about the Council’s decision to start a safeguarding enquiry. However, the Council has a responsibility to safeguard Mrs Y.
42. It is not for the Ombudsman to decide whether the threshold for a section 42 enquiry is met or not. We can only investigate whether there was any fault in the way the Council made the decisions and whether it considered the relevant facts, law, guidance and policies. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
43. The Council received concerns for Mrs Y’s welfare. The Council decided to open a safeguarding investigation, and the police opened an investigation. Mr X said if the Council had contacted him, he could have explained. The safeguarding concerns were about Mr X. The Council policy said it would discuss the matter with the alleged perpetrator at stage three. This stage is after the initial enquiries. The police told Mr X about the allegations during the investigation, before the Council completed stage three of its process. The police completed the investigation and decided to take no further action. The Council then ended its investigation. The Council followed its safeguarding policy. The Council was not at fault.
44. The Mental Capacity Act Code of Practice and the Care and Support Statutory Guidance, the Council cited, both say the Council should immediately report safeguarding concerns about a person who has power of attorney to the Office of the Public Guardian. The Council reported the concerns in accordance with the guidance and code of practice. The Council was not at fault.

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Final decision

45. I have completed my investigation. I have found fault by the Council, which the Council has already remedied.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman