Summary: Mr C and Mrs C complain about the safeguarding action taken against them and the failure of the Council to safeguard Ms D from financial abuse. There is no fault in the Council’s decision to start safeguarding proceedings. However it should have communicated its decision making more clearly to Mr C and Mrs C. To remedy the complaint the Council has agreed to apologise to Mr C and Mrs C and make service improvements.

The complaint

1. Mr C and Mrs C complain about the Council inappropriately starting safeguarding procedures against them, and failure to properly safeguard Ms D from financial abuse. They also complain Sanctuary Supported Living, the “Care Provider” failed to protect Ms D, and have consistently failed to act, respond to their concerns, meet with them, and properly communicate with them.
2. These failings have caused Mr C and Mrs C time, trouble, and frustration that their attempts to safeguard Ms D led to safeguarding proceedings against them.

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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 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, sections 24A(1)(A) and 25(7), as amended).
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. Mr C and Mrs C say their complaints about the Care Provider go back to 2021. The Ombudsman usually only considers matters 12 months from when a person became aware of the issues. I have investigated matters from July 2023 as this is the date Mr C and Mrs C say they became deputies and the communication and difficulties with the Care Provider worsened.
9. I have not looked at issues from 2 April 2024. The date of the first scheduled safeguarding meeting. This is because these are new matters which the Council has not yet had an opportunity to consider. The safeguarding matters were ongoing and there is a potential conflict between a complaint investigation, safeguarding investigation and potentially the Court of Protection.

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How I considered this complaint

10. I spoke with Mrs C and considered the complaint and the written information she provided. I made enquiries of the Council and considered its response. I considered:
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• case notes, complaint correspondence, safeguarding investigation documents;
• responses to a draft decision from the Council, Care Provider and Mr C and Mrs C.
11. Mr C and Mrs C, the Care Provider and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Background information

12. Ms D lives independently in supported accommodation. Ms D does not have capacity to deal with her finances and Mr C and Mrs C act as her deputies. The Court of Protection appoint a deputy to manage a person’s finances where they lack capacity to make financial decisions themselves.

What should have happened

Safeguarding

13. 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. (section 42, Care Act 2014)
14. Stage 1 of the Council’s safeguarding policy, “Multi-Agency Policies and Procedures (MAPP) – Safeguarding Enquires; is the “Alert”, the raising of the concern with the lead agency, in this case the Council. Stage 2 of the policy is the decision about whether the alert has met the safeguarding threshold and whether to proceed to a “Referral”.
15. The Council’s safeguarding policy says it should tell the referrer the outcome of their referral and whether it intends to proceed with making section 42 enquiries.
16. Stage 3 of the safeguarding process is a Strategy meeting / discussion which is a multi-agency meeting coordinated by the Adult Safeguarding Manager in Adult Social Care. This is the stage at which the Council makes section 42 Enquiries.
17. Its purpose includes:
• Consider the wishes and needs of the adult at risk.
• Decide whether an investigation/enquiry will take place.
• If so, how it should be conducted and by whom.
• Undertake risk assessment.
• Agree interim protection plan.
• Make a clear record of the decisions.
• Record what information is shared.
• Agree an investigation plan with timescales.
• Agree a communication strategy.
• Usually just attended by professionals – vulnerable adult, family, alleged perpetrator not typically involved.
18. The Council should involve an advocate in the safeguarding process to represent the person when they would have substantial difficulty in being involved in the process and has no one suitable to help them.
19. Stage 4 of the safeguarding process is a case conference, a meeting held to discuss the outcome of the safeguarding enquiry, agree conclusions and decide whether a long term protection plan is necessary. Depending on the outcome of the case conference the Council will either conclude the enquiries or create an action plan for further monitoring or review under the safeguarding procedures.

Mental Capacity Act

20. The Mental Capacity Act 2005 (MCA) 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.
21. It says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. 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.
22. 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?

23. 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.
24. 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.

Best interest decision making

25. 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. It sets out a checklist of common factors that must always be considered:
• the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
• the beliefs and values that would be likely to influence his decision if he had capacity; and
• the other factors that he would be likely to consider if he were able to do so.
26. Councils must take into account, if it is practicable and appropriate to consult them, the views of:

• anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
• anyone engaged in caring for the person or interested in his welfare;
• any donee of a lasting power of attorney granted by the person; and
• any deputy appointed for the person by the court

as to what would be in the person's best interests.

Court of Protection

27. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases when there is disagreement which cannot be resolved in any other way and decide what is in the person’s best interests.
28. The Mental Capacity Code of Practice, ‘What is the role of the Court of Protection and court-appointed deputies?’ says:
29. “Anyone acting as a deputy must:
• make sure that they only make those decisions that they are authorised to make by the order of the court;
• make sure that they follow the Act’s statutory principles, including: – considering whether the person has capacity to make a particular decision for themselves. If they do, the deputy should allow them to do so unless the person agrees that the deputy should make the decision – taking all possible steps to try to help a person make the particular decision;
• always make decisions in the person’s best interests;
• have regard to guidance in the Code of Practice that is relevant to the situation; and,
• fulfil their duties towards the person concerned (in particular the duty of care and fiduciary duties to respect the degree of trust placed in them by the court).”
30. Section 19(6) MCA says: “A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part”.
31. Section 20 MCA says “(1)A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter”.
• “(2)Nothing in section 16(5) or 17 permits a deputy to be given power—
• (a)to prohibit a named person from having contact with P;……”

What happened

32. Ms D has been living in supported living for several years. Following financial abuse by a former employee, Mr C and Mrs C applied to the Court of Protection to become Ms D’s deputies.
33. Mr C and Mrs C ensured Ms D had £20 available to spend when she went out with F (a family member). Ms D goes shopping and for something to eat with F every week. Mr C and Mrs C had concerns F was taking advantage of Ms D. The Care Provider said Ms D enjoyed F’s visits and had no concerns about her exploiting Ms D.
34. This was a long standing issue. However matters intensified when there was an issue with concert tickets, which Mr C and Mrs C bought, but Ms D attended with F. Because of this, and the deputies ongoing concerns Ms D was spending money inappropriately on items such as soft toys and hoarding; Mr C asked the Care Provider to complete a best interest decision about Ms D’s spending when out with F.
35. Mr C and Mrs C reduced Ms D’s weekly spending amount until a best interest meeting could be held as requested. The Care Provider raised its concerns with the Council as it considered the restrictions were inappropriate and not in line with Ms D’s wishes or feelings. On the same day the Council treated the Care Provider’s contact as a safeguarding alert as potentially Mr C and Mrs C were inappropriately restricting Ms D’s access to F. Mr C and Mrs C say they were not restricting Ms D’s access to F but were challenging the money Ms D had when she went out with F because of inappropriate spending.
36. The Council visited Ms D and spoke with the Care Provider about its concerns. The Care Provider said Ms D had £20 per week to spend when out with F. It said it had receipts from Ms D about the money spent and checked the change. The Care Provider said they found no discrepancies or evidence Ms D was spending money on anyone else or inappropriately. Mr C and Mrs C say this was because at this point they had reduced the weekly money for outings and there was enough money for Ms D to go out. They say is it indicative of their effective management of Ms D's money.
37. The Council contacted Mr C and left messages on 2 October and 3 October. On 31 October Mrs C emailed the Council saying the Care Provider had given Ms D £20 instead of £10 when she went out with F. Mrs C said all funds for the weekly visits would be stopped until a best interest meeting could be held in accordance with the request made.
38. On the 28 December the Care Provider says the Council provided outcomes for the safeguarding alert which were as follows:-
• Ms D to have autonomy over what she chooses to spend her weekly allowance on.
• Ms D should make choices on the activities she wishes to take part in and buy the items she wishes within her agreed weekly allowance.
• There were no concerns identified about Ms D having money when she goes out with F.
• Ms D to be given spending money when she goes out; receipts and change given back to staff to record when Ms D returns home.
39. In response to a draft decision on the complaint Mr C and Mrs C say Ms D had full autonomy and was fully funded for all activities. The only restriction related to spending when out with F.
40. The Council left further messages on 15 November, and 19, 22 January 2024. The Council says Mr C did not return these messages.
41. On 23 January the Council says Mr C agreed Ms D could have £20 per week. Mr C and Mrs C say there was no agreement for this to occur. Mr C had repeated the need for a best interest meeting which he was waiting for from the Care Provider. On 29 January the Care Provider contacted the Council raising the following safeguarding concerns:
• Mr C and Mrs C were withholding funds which prevented Ms D from having contact with F; and,
• threatening to remove Ms D which was causing her emotional distress.
42. In response to a draft decision on the complaint Mr C and Mrs C say they never restricted Ms D’s access to F, only to funds when she went out with F. This should not have affected Ms D’s ability to go out with F. They also say they never threatened to move Ms D but did want to look at other options to meet Ms D’s needs. Mr C and Mrs C say they understood this decision was one the Council had to make.
43. On 30 January Mrs C emailed the Care Provider saying £20 was not agreed and asking for a best interest meeting to discuss the allowance.
44. The Council agreed to meet with Mr C and Mrs C, it also made a referral for Ms D to have an advocate. Mrs C responded to the Council’s request for contact, she said that Ms D could not have money when she went out with F until a best interest meeting. Mrs C complained about the general lack of communication, and the Care Provider’s failure to safeguard Ms D. Mrs C also wanted to discuss the possibility of Ms D moving to a different care provider. This was because the relationship between Mr C and Mrs C and the Care Provider had become strained. Mrs C offered dates for a best interest meeting for the beginning of April. This was in line with her work arrangements as she can only meet during school holidays.
45. The Council agreed to the meeting date but had concerns it was too far away. It offered an alternative date in February. The Council visited Ms D on 16 February. By this time the Care Provider also raised concerns Ms D was hiding her belongings as she was concerned Mrs C would remove them. Mr C and Mrs C also did not want F going into Ms D’s room. The Care Provider said it needed guidance about how Ms D could spend her money.
46. The officer checked the financial records and the receipts for when Ms D went out with F. The records showed Mr C and Mrs C provided £1100 per quarter, increased after Mr C and Mrs C identified Ms D needed extra funds. Mr C and Mrs put the money on a prepayment card for Ms D’s personal expenses. The Care Provider will then ask Mr C and Mrs C for extra money if needed for added expenses such as concerts. There were no concerns about this aspect of the deputies’ management of Ms D’s finances. There were however outstanding concerns about using funds to control what Ms D could buy and who she could see.
47. Later the same day Mrs C contacted the Council to say following abusive threats from F she had now blocked her number. Mrs C raised her concerns about F. In response to a draft decision the Council says this alert did not meet the threshold for safeguarding.
48. The Council arranged a safeguarding meeting on 2 April away from the Care Provider so Ms D would not become distressed. This was to discuss the Council’s ongoing safeguarding concerns about Mr C and Mrs C’s management of Ms D’s finances.
49. Mr C and Mrs C said they had not agreed to attend a safeguarding meeting but were willing to attend a best interest meeting at the Care Provider.
50. On 3 April Mrs C wrote to the Council saying that following a best interest meeting they would allow Ms D £10 to go out with F. A financial plan evidenced Ms D was overspending and the reduced amount was to prevent a shortfall for the end of year. Mr C and Mrs C also completed an audit of Ms D’s room and explained she did not need many items this included teddies and dolls. They were also concerned the excessive buying of items was contributing to Ms D’s potential to hoard, a fire risk, and causing her anxiety.
51. The Council says it met with the Care Provider and there was no evidence of hoarding; an increased fire risk or excessive buying. Mr C and Mrs C say this is because of the actions they have taken to reduce Ms D’s hoarding and remove fire risks. They say it was the potential for hoarding which they raised as a concern.
52. Mr C and Mrs C complained separately both to the Council and the Care Provider. The Care Provider responded to Mr C and Mrs C’s complaints about the lack of communication, mis/communication, bias towards other family members and best interest decisions. The Care Provider apologised for the delays in communication and some miscommunication. It also provided a communication plan of weekly updates to Mr C and Mrs C. The Care Provider said that it acted impartially and matters about outings with F were now the responsibility of the Council.
53. In response to a draft decision on the complaint Mr C and Mrs C say they never wanted the Council or Care Provider to make best interest decisions. Instead they wanted a collaborative approach to decision making which considered Ms D’s available funds and her potential for hoarding.
54. The Council responded to Mr C and Mrs C’s complaints and apologised for a 6 week delay in responding to their complaint and explained this was due to a cyber-attack. It apologised for the delay in the safeguarding process and provided an update on the safeguarding investigation but said it was still ongoing. It also provided the process needed for Ms D to move accommodation.

Is there fault causing injustice?

Best interest decision

55. The crux of this complaint is whether the Council should have intervened on two issues. The first was spending when Ms D was out with F and the second, decisions about what Ms D spent her money on. The deputies wanted the Care Provider and later the Council to make these decisions.
56. However these decisions were not ones either the Care Provider or the Council could make. The Mental Capacity Act says financial decisions are the responsibility of the deputies and cannot be passed on to another person or organisation. It was therefore up to the deputies to make the decision about spending when Ms D was out with F; and more generally what she spent her money on. In making these decisions the deputies should act in Ms D’s best interests and only on financial decisions she cannot make herself.
57. As part of safeguarding the Council considered whether it needed to intervene on behalf of Ms D, in respect of the time she spent with F including access to and spending of money when she was with F. This was part of its general duty to safeguard vulnerable adults who may be at risk of harm. It gathered information, visited Ms D, and spoke with the Care Provider. The Council considered Ms D had capacity to make decisions about whether she wanted to spend time with F and how she spent the money she took with her when doing so. As these were decisions Ms D could make herself the Council would have been acting contrary to the Mental Capacity Act had it taken further action.
58. Officers also had no concerns there was a fire risk nor was there evidence Ms D was hoarding. The Ombudsman is unable to criticise a professional judgement unless there is procedural fault. I have found no evidence of procedural fault in this part of the complaint.
59. The Council made several attempts to discuss matters between October 2023 and January 2024 but there was no response to the specific issues from Mr C and Mrs C.
60. This was an opportunity to try and resolve matters or clarify what the Council’s duties and powers were and to reiterate those of the deputies. The Council tried to contact Mr C and Mrs C to discuss matters and when it did speak to Mr C in January 2024 matters had intensified.
61. I appreciate the situation was not static and there was a potential blur between Ms D spending time with F, and spending money with F, the latter of which only the deputies could decide. While the Council did try and contact Mr C and Mrs C when they did not respond it should have written to Mr C and Mrs C setting out its responsibilities. In particular what action it could take, and that Mr C and Mrs C could escalate matters to the Court of Protection. I consider the failure to properly communicate this to Mr C and Mrs C was fault.

Safeguarding investigation

62. Due to the conflict of allegations between Mr C, Mrs C and F there were several alerts with conflicting concerns.
63. As stated above the Council did take safeguarding action in October 2023. There was no fault in the Council starting a safeguarding investigation at that time. The Council based its decision on concerns about potential financial and emotional abuse.
64. Mr C and Mrs C say had the Council completed a best interest assessment and made decisions about F and Ms D’s spending there would have been no need for the safeguarding. As stated above the Council could not make best interest decisions on what Ms D could spend her money on.
65. I consider the Council should have contacted Mr C and Mrs C about the outcome of its safeguarding investigation into the alert raised by the Care Provider. If it could not speak to Mr C and Mrs C by phone it should have communicated its decision by letter/email. The Council left the Care Provider to carry out a plan that Mr C and Mrs C were not aware of.
66. I also consider the Council was at fault for failing to tell Mr C and Mrs C the outcome of their own safeguarding alert about F.
67. The Council did not consider the use of an IMCA early on in the safeguarding process. I consider this was not in line with the Council’s safeguarding policy or the Care and Support Statutory Guidance and is fault. Ms D has the injustice of not having an advocate sooner.

Complaints about the Care Provider

68. The Care Provider has apologised for the lack of communication and miscommunication and created a communication plan. I consider this is suitable for this part of the complaint.
69. For the reasons set out above I cannot however say the Care Provider is at fault for failing to complete a best interest decision on the matters Mr C and Mrs C complained of. The Care Provider sought advice from, and followed the advice of the Council. There is nothing to suggest the Care Provider acted out of malice to Mr C and Mrs C nor to favour F.

Complaint handling

70. The Council has apologised for the delay in responding to Mr C’s and Mrs C’s complaint. The delay occurred because of events outside the Council’s control. I therefore consider an apology is sufficient to remedy this part of the complaint.

Mr C and Mrs C’s injustice

71. While I have found fault in the Council’s communication of its decisions to Mr C and Mrs C I consider their injustice is limited. This is because the Council did make efforts to contact Mr C and Mrs C and they could have discussed matters sooner. It is also, on balance, unlikely that had the Council communicated its decisions earlier it would have resolved matters. This is because Mr C and Mrs C were resolute for the need of best interest decisions around Ms D’s spending, a decision the Council could not make.

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Action

72. I have found fault in the actions of the Council which has caused Mr C and Mrs C injustice. I consider the following actions are appropriate to remedy the complaint.
73. Within one month of the final decision the Council has agreed to apologise to Mr C and Mrs C for the Council’s failure to properly communicate its decision making with them. Mrs C has said she is uninterested in an apology. I therefore consider to avoid further distress the Council should not send an apology unless the complainants contact them in the next three months asking for the apology.
74. Within three months of the final decision the Council should remind relevant staff by way of a staff circular, team meeting or other suitable method, about the following:
1. the importance of involving an advocate as early as possible when there are safeguarding issues about a person who lacks capacity and has no one appropriate to help them; and
2. the importance of communicating decisions about safeguarding.
75. The Council should provide us with evidence it has complied with the above actions.

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Decision

76. I consider there was fault in the actions of the Council which caused Mr C and Mrs C injustice. I consider the actions above are suitable to remedy the personal injustice caused and to improve future services.
77. I have completed my investigation and closed the complaint based on the agreed actions above.

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Investigator's decision on behalf of the Ombudsman