The Ombudsman's final decision:
Summary: Mrs Y complains about the Council’s actions following receipt of a safeguarding concern made about her. Mrs Y also complains about the Council’s decision to appoint an independent advocate for her son, Mr X. The Ombudsman finds no fault in the Council’s actions and does not uphold the complaint.
- The complainant, whom I will call Mrs Y, complains the Council
- is at fault for commissioning an advocate for her son, Mr X, as he already has appropriate representation from family members;
- communicated with her about Mr X’s advocate in a way which has been poor and confusing;
- failed to consider the views of Mr X’s family and professionals involved with his care since the appointment of the advocate; and
- failed to disclose the nature of a safeguarding allegation, or to seek her views about the allegation made before deciding to take no further action.
What I have investigated
- I have investigated the complaints listed above, but I have not considered whether Mr X has mental capacity to make the decisions in question.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- During my investigation, I have:
- Discussed the complaint with Mrs Y and considered any information she submitted;
- Made enquiries of the Council and considered its response. I cannot share all the documents received with Mrs Y as we do not have the consent of Mr X, however she should be assured that I have considered all of the documents carefully and impartially before reaching this view;
- Consulted the relevant parts of the Care Act and the supplementary statutory guidance; and
- Issued a draft decision and considered any comments received before making a final decision.
What I found
- Mr X has learning disabilities and lives in supported housing. The Council presumes Mr X has mental capacity. Mr X spends every weekend with his mother, Mrs Y.
- The Council received an alert from a member of staff at Mr X’s supported accommodation in December 2017. The alert concerned a note Mrs Y had made on the carer’s time sheets. The notes advised staff to ensure that Mr X went to bed at a reasonable time, and suggested removing his television if Mr X refused to.
- After making enquiries the Council decided there was no harm or risk of harm to Mr X. It therefore took no further action.
- Shortly after receiving the safeguarding alert, the Council appointed an independent advocate for Mr X to help him express his views. Mrs Y complains about the appointment of the advocate; she feels the advocate is not required, and the Council has side-lined the family’s views.
Complaint a) commissioning of Mr X’s advocate
- 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 says that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks 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.
- The ‘Care and Support Statutory Guidance’ confirms that councils should appoint an independent advocate when someone is unable to fully participate in conversations about their care and support. This requirement is not confined only to those who lack the mental capacity to make decisions about their care.
- I appreciate that Mrs Y has concerns about the commissioning of the advocate, but it is not fault. The Council has not assessed Mr X’s capacity in relation to any specific decisions because it says it has no reason to believe he lacks capacity. However this does not mean that Mr X should not have access to an advocate.
- The Council says that Mr X has capacity to decide who is present at any assessments or meetings about his care and support, and has communicated that he wishes to continue with his current social care coordinator and advocate. Although the safeguarding enquiries closed at an early stage, the advocate remained with Mr X because there are continuing discussions about Mr X’s care and support. The Council feels the advocate is helping Mr X to convey his wishes and feelings. This is not fault.
Complaints b) and c) communication with Mrs Y and consideration of Mr X’s family and other professionals
- The case notes show the Council advised Mrs Y of the appointment of Mr X’s advocate. Mrs Y subsequently raised concerns about the advocate being male. She is also concerned that the Council has failed to consider the wishes and feelings of family members and other professionals involved with Mr X since appointing the advocate.
- I appreciate that Mrs Y would like to be included in all discussions about Mr X’s care and support. The case notes show the advocate’s view that Mr X has capacity to decide who is involved with his assessments. Mr X is also able to voice his views about the social care coordinator appointed to deal with his case. The notes show that Mr X is happy to receive advocacy services from a male.
- The evidence shows the Council has acted in accordance with Mr X’s wishes and feelings. While I understand that Mrs Y would have preferred greater involvement in all aspects of Mr X’s life, he is currently assumed to have capacity to make decisions about who is involved with his care and support. I do not find fault.
Complaint d) safeguarding investigation
- The Council received the concern about Mrs Y’s note on 8 December. The case notes show that it promptly arranged to discuss the concern with Mrs Y. The first appointment was cancelled due to both Mrs Y and Mr X being unwell. The Council subsequently met with Mrs Y on 17 January. The notes of that discussion show that the Council explained that a safeguarding concern had been received. The Council then discussed with Mrs Y the reasons for her note. Mrs Y explained that Mr X has structured routines and that she was concerned about him going to bed late, oversleeping and then missing his morning bus. Mrs Y was upset that her note had been seen in a way which was presumed harmful.
- The Council explained to Mrs Y that it had closed the safeguarding enquiries and no further action would be taken. However it explained that it would complete a further assessment of Mr X’s needs and look to incorporate Mr X’s bedtime routine into his plan so staff could support him in going to bed at a reasonable time.
- Two days later Mrs Y contacted the Council. She explained that she was upset and that she wanted to know who had made the alert. The Council said it could not relay this information.
- I understand that Mrs Y was upset to hear about the safeguarding allegation made against her. Mrs Y makes clear that she always has Mr X’s best interests at heart. Due to the timing of the alert, the intervening Christmas period and Mrs Y’s illness, it appears from the notes that the Council discussed the alert with Mrs Y as soon as it could.
- The Council’s guidance says that it should inform alleged perpetrators of any allegations made in the majority of cases. In doing so the Council should:
- Inform that they are the subject of a safeguarding allegation
- Advise that a safeguarding investigation is being undertaken
- Provide an opportunity to respond, for example through interview or discussion
- Inform them of any recommendations, for example whether the concern is to be substantiated
- Provide an opportunity to respond to the findings, so that these can be included in the final investigation report
- Allow them to read any part of the investigation report which relates directly to them; and
- Advise if a case conference is to be held.
- I have completed my investigation into Mrs Y’s complaint and made a finding of no fault for the reasons explained in this statement.
Parts of the complaint that I did not investigate
- The issue which underpins this complaint is whether Mr X has capacity to make decisions about advocacy support, and any wider decisions about who is involved with his care and support. The Council has confirmed its view that Mr X is presumed to have capacity and therefore it has not, so far, undertaken a mental capacity assessment.
- The Ombudsman cannot resolve disputes about mental capacity. 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 can decide if a person has capacity to make the decision in question.
Investigator's decision on behalf of the Ombudsman