Summary: The complaint concerns the Council making safeguarding enquiries after Mr B had an injury. We do not find the safeguarding enquiries resulted from any fault by the Council.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, complain the Council carried out an unnecessary safeguarding investigation of them following Mr B’s hospital admission. As a result, Mr and Mrs B report they experienced avoidable anxiety and they believe the Council now holds inaccurate information about them.

What I have investigated

2. I investigated points that were in the Ombudsman’s jurisdiction and that I considered proportionate to investigate. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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)
7. 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)

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How I considered this complaint

8. I considered the information Mr and Mrs B provided and discussed the complaint with Mr B. I made written enquiries of the Council and considered its response. I also obtained some copy documents from a hospital. I shared my draft decision with Mr and Mrs B and the Council and considered their comments on it.
9. When the Council responded to my enquiries it used its power to serve legal notice preventing me sharing the contents. So this decision statement does not refer in detail to the evidence I have seen.

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What I found

10. Mr B was taken to hospital with a head injury in 2017. Mr and Mrs B report this happened when Mr B fell in the road. Mr B went home after some days in hospital. The Council started some safeguarding enquiries related to the incident then said it was not making further enquiries.

Starting safeguarding enquiries

11. The Council must make safeguarding enquiries if it has ‘reasonable cause to suspect’ an adult:
1. has care and support needs (whether or not Council services are meeting those needs) and
2. is experiencing or at risk of abuse or neglect and
3. as a result of the care and support needs, cannot protect himself or herself against the abuse or neglect or against the risk of it. (Care Act 2014, section 42)
12. Having ‘reasonable cause to suspect’ something is a lower threshold than considering something likely or being certain about it. So when a council starts safeguarding enquiries, it does not mean the Council believes abuse or neglect has happened or that it is accusing anyone of such acts. The underlying attitude is that it is better to err on the side of caution and later decide there was no cause for concern than to risk missing genuine abuse or neglect. So it is inherent in the safeguarding system that a council might start enquiries and later decide it need not continue because, on investigation, it no longer has reasonable cause to suspect points a) to c) apply. In such cases, it does not necessarily mean the Council is at fault for starting safeguarding enquiries.
13. The Council does not have to receive a formal safeguarding referral from anyone else in order to consider if the threshold for safeguarding enquiries is reached. In this case, the Council did not receive a safeguarding referral about Mr B. The hospital contacted the Council, including suggesting the Council consider offering Mr B a carer’s assessment.
14. It is a matter for the Council’s judgement in each case whether it has ‘reasonable cause to suspect’ points a) to c) apply. Therefore the restriction in paragraph 4 applies. I would only criticise the Council if it did not properly reach its judgement on those three points.

The Council’s view it had reasonable cause to suspect Mr B had care and support needs

15. The Council knew that: Mr B had spent several days in hospital with a head injury; he was a carer for his wife; and the hospital had wondered whether he might need support from the Council when he went home. A head injury might affect someone’s ability to look after themselves or someone else, whether short- or long-term. So a person who has received such an injury might have care and support needs.
16. In the circumstances, I see no fault in how the Council reached its decision that it had reasonable cause to suspect Mr B had care and support needs.

The Council’s view it had reasonable cause to suspect Mr B was experiencing or at risk of abuse or neglect

17. I cannot disclose details of the evidence I have seen. However, I am satisfied the Council judged it had ‘reasonable cause to suspect’ on this point after assessing information it had, including from the hospital, from the Council’s contact with Mr and Mrs B at the time and from its knowledge of past dealings with them. On the last point, there is no fault in taking account of past events in case there might be a pattern of continuing problems. Having regard to that when deciding whether to begin enquiries does not mean the Council has decided there definitely is a safeguarding problem.
18. The evidence I have seen suggests the Council had enough basis for deciding it had ‘reasonable cause to suspect’ on this point.
19. Mr and Mrs B express concern about some points the Council mentioned that they state were inaccurate, in particular:
• The Council saying the NHS had stated Mr B’s injuries were not in line with the explanation of what had happened.
• The Council saying the police came when Mr B was injured in 2017.
20. However, the points above were not the only points that gave the Council ‘reasonable cause to suspect’ Mr B was experiencing, or at risk of, abuse or neglect. So, even had the Council never cited the matters in paragraph 19, I am satisfied on balance it would probably have made the same decision on this point. So the result (starting safeguarding enquiries) would have been the same. Therefore the points in paragraph 19 did not disadvantage Mr and Mrs B significantly enough for me to pursue those points further.
21. I would add that, regarding the second bullet-point in paragraph 19, I am satisfied the Council alleged what Mr and Mrs B say. I am also satisfied the police were not called to that incident although both the police and an ambulance had attended a previous incident in 2016 when Mr B was injured.

The Council’s view it had reasonable cause to suspect Mr B, due to the care and support needs, could not protect himself against abuse, neglect or the risk of it

22. The possibility of the person being unable to protect themselves must relate to the person’s possible care and support needs. Here, Mr B’s possible care and support needs related to a recent head injury. The Council had no reason to believe that injury had caused a physical impairment (such as inability to move or to speak) that might prevent Mr B protecting himself.
23. Separately, there was the question of Mr B’s mental capacity. Mr B had declined a carer’s assessment and signalled he did not want Council involvement. So the Council could not assess his mental capacity regarding protecting himself. Normally, organisations assume someone has mental capacity to make decisions unless there is reason to doubt this. Here, however, the Council knew Mr B had recently had a head injury significant enough to have spent some days in hospital. A head injury might affect someone’s short- or long-term mental capacity to make decisions, including understanding whether they were experiencing or at risk of abuse or neglect and understanding how to protect themselves.
24. This does not, of course, mean the Council assumed Mr B lacked such capacity. The question for the Council was just whether there was reasonable cause to suspect this. The Council knew about Mr B’s head injury, it knew a head injury might affect someone’s mental capacity and it knew it had not assessed Mr B’s mental capacity to make decisions about safeguarding.
25. In the circumstances, I do not fault how the Council decided it had ‘reasonable cause to suspect’ Mr B’s possible care needs related to his head injury might affect his ability to protect himself.

My decision on the Council starting safeguarding enquiries

26. As the Council believed it had ‘reasonable cause to suspect’ the three criteria applied, it looked into its safeguarding concerns and made enquiries.
27. For the reasons explained above, I do not criticise the Council’s decision that the threshold to make safeguarding enquiries was met. It is important to reiterate this did not mean the Council assumed Mr B was actually experiencing, or at risk of, abuse or neglect. Councils must start such enquiries if they judge the threshold is reached and can later, equally legitimately, decide against further action.

The Council continuing safeguarding enquiries

28. Mr and Mrs B became aware in September 2017 the Council was treating this as a safeguarding matter. They complained then that there was no need for that. Their contact with the Council was by email and telephone. The Council did not confirm it had stopped its safeguarding activities in September but in November 2017 it told Mr and Mrs B it (the Council) was not making further enquiries.
29. It is relevant for the Council to take account of the wishes of the person whose safeguarding the Council is concerned about. In this case it is also relevant that, when Mr B said he did not want safeguarding involvement, the Council could not be sure that was his genuine wish or that, following his head injury, he had mental capacity to understand and make that decision. I stress I am not suggesting Mr B did not mean or understand what he said; my point is the Council had to have regard both to what he said and to its not knowing about his capacity.
30. Additionally, even if the Council is satisfied someone it is concerned about has capacity to decline safeguarding involvement, that is not necessarily decisive in every case. Councils can legitimately continue enquiries in some cases.
31. So I do not consider the Council was at fault for not agreeing to end its safeguarding involvement immediately Mr B said he did not want it. Also, I do not see that any action the Council took in that time significantly disadvantaged Mr and Mrs B. I appreciate they were naturally upset by the safeguarding enquiries, as anyone might be. However, as I have explained, it is an inherent part of the safeguarding system that people might be subject to enquiries, causing some upset, even if the enquiries find no abuse or neglect. That does not result from fault by the Council.
32. For these reasons I shall not pursue further the Council’s not saying it would cease its safeguarding investigation as soon as Mr B requested it.

Mr and Mrs B’s concern the Council obtained information from the police

33. Mr and Mrs B believe the Council obtained from the police information about Mrs B that she would not have wanted to be shared.
34. I cannot comment in detail about whom the Council contacted or did not contact. However, as explained above, I do not fault the Council for deciding to make some safeguarding enquiries. In such circumstances, I would not criticise a council if it contacted the police in the context of safeguarding enquiries about an incident when someone was injured.
35. If Mr and Mrs B believe there was a breach of their rights to confidentiality as data subjects, that is more appropriately a matter for the Information Commissioner than for the Ombudsman.

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Final decision

36. I have completed my investigation for the reasons given above.

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Parts of the complaint that I did not investigate

37. I did not investigate whether the Council defamed Mrs B. The restriction in paragraph 5 applies to this point. Defamation is a legal concept that is not necessarily straightforward. It is more appropriate for the courts than the Ombudsman to consider whether defamation has occurred. So if Mrs B wants a ruling on this point I consider it would be reasonable to expect her to take court action.

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Investigator's decision on behalf of the Ombudsman