Summary: Mrs X says the Council failed to properly consider her safeguarding concerns, failed to update her, failed to intervene to arrange a visit protocol, misrepresented what her mother had said and failed to carry out mental capacity assessments properly. There is no fault by the Council.

The complaint

1. The complainant, Mrs X, complained the Council:
• failed to properly consider her safeguarding concerns about her mother, Mrs Y;
• failed to update her following safeguarding visits;
• failed to act on a request from her solicitor for a visit protocol;
• wrongly said her mother was clear she did not want to have any contact with her when her mother never said that;
• failed to carry out a mental capacity assessment properly; and
• breached data protection regulations by sharing her information with her sister.
2. Mrs X says the Council’s actions means she now cannot have any contact with her mother and she has experienced significant distress.

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The Ombudsman’s role and powers

3. 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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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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What I have and have not investigated

7. I have investigated Mrs X’s concerns about safeguarding issues, issues around visits and the mental capacity assessments from April 2023 onwards. I have not investigated Mrs X’s concerns about a breach of the data protection regulations as that is a matter for the Information Commissioner.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs X and the organisation 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

The Council’s adult social care safeguarding adults practice guidance

10. This refers to section 42 of the Care Act 2014 which requires local authorities to make enquiries, or cause others to do so, if they reasonably suspect an adult who meets the criteria is, or is at risk of, being abused or neglected.
11. It says:
• when a concern is first identified the views of the person at risk need to be established which includes checking the person has capacity;
• those involved in safeguarding need to acknowledge there is a balance to be struck between risk and a person’s right to make their own informed decisions even if others consider the decision unwise or it puts the person at risk;
• the scope and nature of any enquiry will depend on individual circumstances and will usually start with asking the person their views and wishes which will often determine the next steps to take;
• the Council gathers further information from identified sources if required to decide if there is reasonable cause to suspect the section 42 duty has been met;
• if, after proportionate fact-finding, the three-stage test is met (that a person has care and support needs, that they may be experiencing or at risk of abuse and neglect and that they are unable to protect themselves because of the care and support needs) the Council will begin a section 42 enquiry;
• not every enquiry will require a strategy meeting and this should be decided on a case-by-case basis;
• the Council will formulate and agree an adult safeguarding plan if there is an ongoing risk.

The Mental Capacity Act 2005 code of practice

12. This says whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.
13. This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.
14. It also reflects the fact a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes.
15. The Act’s starting point is to confirm in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown they lack capacity to make a decision for themselves at the time the decision needs to be made. This is known as the presumption of capacity. The Act also says people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process.
16. Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity:
• does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
• if so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

Background

17. Mrs Y used to live close to Mrs X. After her husband died Mrs Y moved in with her other daughter but did not dispose of her own property. There are some family conflicts with both Mrs X and her sister making allegations about each other. Mrs X has also raised concerns about her sister financially abusing Mrs Y and preventing her having access to other family members, including Mrs X.
18. The Council completed safeguarding enquiries in 2023 and 2024. Those enquiries included visiting Mrs Y and speaking to her on her own and in a neutral place. After completing mental capacity assessments the Council is satisfied Mrs Y has capacity to make her own decisions about her finances and where she should live. The Council does not have any concerns about Mrs Y’s safety and has closed each of the safeguarding enquiries.

Analysis

19. The Ombudsman will not normally consider a complaint about matters which happened more than 12 months before the complaint to us. Mrs X complained to the Ombudsman in July 2024. I am exercising the Ombudsman's discretion to investigate matters from April 2023 onwards. That is the point at which Mrs X's daughter sent a formal safeguarding referral to the Council. It is also 12 months before the formal complaint Mrs X's solicitor sent to the Council. I appreciate Mrs X and her daughter raised earlier safeguarding issues with the Council. However, I am satisfied investigating matters from April 2023 onwards is appropriate as I am satisfied most of the Council's decision making around safeguarding took place after that.
20. Mrs X says the Council failed to properly consider the safeguarding concerns she raised. The evidence I have seen satisfies me Mrs X and her daughter have raised three safeguarding concerns in the period I am investigating between April 2023 and January 2024. I am satisfied the Council progressed the first and third referral to a section 42 enquiry. I am satisfied the Council did not progress the second safeguarding referral to a section 42 enquiry as it considered the concerns raised were the same as those it had previously investigated. Given the Council began two section 42 enquiries I could not say the Council failed to con-sider Mrs X's safeguarding concerns.
21. I am satisfied as part of its consideration of the safeguarding issues the Council has taken the following actions:
• visited Mrs Y on multiple occasions and on each of those occasions it has either seen Mrs Y on her own or at a neutral place on her own;
• carried out mental capacity assessments to find out whether Mrs Y had capacity to decide where she wanted to live and had capacity to make decisions about her finances;
• liaised with the Office of the Public Guardian (OPG);
• liaised with the police;
• made a referral to an independent advocate who then met with Mrs Y on her own; and
• considered the report from the independent advocate.
22. Those are the actions I would expect the Council to take when considering a safeguarding referral and I have found no evidence of fault.
23. I recognise Mrs X's main concern though is that despite those investigations the Council has not taken any action. The evidence I have seen though satisfies me the reason the Council has not taken any action is because it has not found any evidence of safeguarding issues. It is also clear the Council is satisfied Mrs Y has made her own choices about where to live and who to have contact with. It is clear the Council does not consider Mrs Y is at risk where she is living and does not consider she has suffered any harm.
24. I recognise Mrs X is likely to strongly disagree with that decision. However, as I am satisfied the Council has reached that decision properly there are no grounds on which I could criticise it. I also note the decision that Mrs Y is not at risk of harm in her current home is also a decision reached by the police, OPG and the independent advocate. I am further satisfied the police confirmed following a visit to Mrs Y that her daughter had not left her locked in the property as Mrs X said. The police explained it had verified Mrs Y had a key in the door for her to leave had she wanted to do so. As I have made clear, it is not my role to comment on the merits of the decision unless there is evidence of fault in how that decision has been reached. I have not found any evidence of fault in this case.
25. Mrs X says she has provided evidence of financial abuse and the Council has failed to act on that. I am satisfied the Council acted on that by meeting with Mrs Y on her own and carrying out a mental capacity assessment about her ability to manage her finances. Following that assessment the Council decided Mrs Y had made her own choices about how to spend her money and had been able to explain the choices she had made. The Council was also satisfied Mrs X had mental capacity to manage her own finances. I appreciate Mrs X is likely to strongly disagree with the Council's conclusions here. However, as I have made clear, it is not my role to comment on the merits of a decision reached without fault. As I am satisfied the Council properly considered whether Mrs Y had made her own decisions about finances and decided there was no evidence of financial abuse after meeting with her on more than one occasion there are no grounds on which I could criticise it.
26. I understand Mrs X's concerns given she now does not have any contact with Mrs Y. Mrs X is sure Mrs Y has never said she did not want contact with her and she therefore believes Mrs Y has experienced coercive control. Having considered the documentary evidence I am satisfied the Council has explored those issues with Mrs Y. That has included several visits to Mrs Y where a social worker spoke to her on her own, including visits where the social worker returned a week later to check for any changes to her answers. The Council is satisfied it is Mrs Y's choice not to have contact with Mrs X. As that is supported by the documentary evidence there are no grounds on which I could criticise it.
27. Mrs X also has concerns about a solicitor being appointed which led to Mrs Y’s property being put up for sale. Mrs X says Mrs Y had never met the solicitor and had not agreed to the actions the solicitor took. Mrs X is therefore concerned the Council failed to act on that.
28. The evidence I have seen satisfies me this is a matter the OPG considered. That is also the right process to consider the actions of the solicitor given it concerns action surrounding the lasting Power of Attorney. That is therefore not a matter for the Council to pursue and I cannot criticise it for not doing so.
29. Mrs X says the Council failed to update her following safeguarding visits to Mrs Y. The evidence I have seen though satisfies me the Council has remained in regular contact with either Mrs X or her daughter, or both, about the safeguarding issues. I therefore could not say the Council failed to keep them up-to-date.
30. Mrs X says her solicitor asked the Council to arrange a visit protocol so Mrs X could visit Mrs Y and the Council failed to act. The evidence I have seen satisfies me the Council tried to help resolve the visiting issues by holding a mediation meeting in June 2023. The Council’s notes from that meeting record the family could not agree a way forward.
31. I appreciate this leaves Mrs X with some difficulty as she has not been able to see Mrs Y. However, resolving contact issues is not a matter for the Council. The Council’s responsibility relates to ensuring Mrs Y is in a safe environment. As I said earlier, the Council is satisfied Mrs Y is in a safe environment. In those circumstances the Council does not have any responsibility for sorting out contact arrangements with other family members. Despite that though I am satisfied the Council has tried to sort that out but could not do so due to the conflict between family members. As I have found no evidence of fault by the Council I have no grounds to criticise it.
32. Mrs X says the Council failed to carry out mental capacity assessment of Mrs Y properly. Mrs X says a mental capacity assessment took place in 2021 and that mental capacity assessment judged Mrs Y to not have mental capacity for property and finance. Mrs X therefore says the mental capacity assessments completed in 2023 and 2024 were inadequate.
33. The first point to make here is that when a mental capacity assessment is carried out it is relevant to the specific time at which it is carried out and the specific decision it concerns. So, the fact somebody is assessed as not having mental capacity at one point in time for one area does not mean that person would also have incapacity about similar matters at a later date. In each case the person carrying out the mental capacity assessment needs to follow the process.
34. In this case I am satisfied the Council carried out a mental capacity assessment about Mrs Y’s ability to manage her finances on 3 May 2023. Mrs X says that assessment was flawed because the officer carrying out the assessment failed to notice the bank statement provided was from two years earlier. Having considered the mental capacity assessment I have found no evidence to support Mrs X’s allegation. Instead, the mental capacity assessment referred to the officer viewing a bank statement from April 2023.
35. I am also satisfied the assessment explained the steps the officer had taken to assess Mrs Y in line with the Mental Capacity Act 2005. The assessment explained why the officer was satisfied Mrs Y could retain the information provided, weigh up the information and be consistent with her answers. Because of that the officer was satisfied Mrs X had capacity to make decisions about her financial affairs. As the Council reached that decision after carrying out a proper mental capacity assessment there are no grounds on which I could criticise it.
36. I am also satisfied the Council carried out a mental capacity assessment about Mrs Y’s capacity to make a decision about where she wanted to live. The Council completed that mental capacity assessment on 5 February 2024. Mrs X says that assessment was flawed because the officer did not consider whether Mrs Y could manage her finances and allowed her sister to be present during the assessment.
37. Mrs X is right to say the 2024 mental capacity assessment did not consider Mrs Y’s capacity to manage her finances. I am satisfied though this was because the mental capacity assessment was to assess whether Mrs Y had capacity to make a decision about where she wanted to live. As I have made clear, mental capacity assessments are decision specific. As the assessment related to the decision about where Mrs Y would live I would not have expected the Council to assess Mrs Y’s ability to manage her finances. The Council had already assessed that in 2023, as had a court of protection medical visitor and both had decided Mrs Y had mental capacity to make decisions about her finances.
38. I have found no evidence to suggest the officer completing the 2024 mental capacity assessment allowed Mrs X’s sister to remain in the room and take part in the assessment. Instead, the record from the mental capacity assessment makes clear the officer spoke to Mrs Y in her bedroom on her own for an hour.
39. I am satisfied the Council completed the 2024 mental capacity assessment properly. I am satisfied the report for the assessment explained the steps the officer had taken to assess Mrs Y in line with the Mental Capacity Act 2005. The assessment explained why the officer considered Mrs Y could retain the information provided, weigh up the information and be consistent with her answers. In light of that the officer considered Mrs Y had capacity to make decisions about where she should live. As the Council reached that decision after carrying out a proper mental capacity assessment there are no grounds on which I could criticise it.

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Final decision

40. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman