Summary: Ms F complains about the Council’s actions in relation to a safeguarding investigation against her. The Ombudsman has found fault causing injustice. The Council has agreed to apologise and make a payment to Ms F.

The complaint

1. Ms F complains:
1. About how the Council carried out a safeguarding investigation into an allegation in October 2017 that she was financially abusing her late mother, Mrs M. Ms F says the Council treated her like a criminal.
2. That the Council did not refund money she had spent on Mrs M whilst the Council acted as Mrs M’s deputy from October 2017. Ms F says as a result she has financial losses of about £2,000.
3. That the Council delayed dealing with her May 2018 complaint about the matter, causing her time and trouble.

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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. 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(if), as amended)

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How I considered this complaint

4. I spoke to Ms F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014 (the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
• Newcastle Multi-agency Safeguarding Adults Procedure ("the Procedures")
5. Ms F 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

Safeguarding Adults

6. The Act says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
7. This duty applies equally to those adults with care and support needs regardless of whether those needs are being met, regardless of whether the adult lacks mental capacity or not, and regardless of the setting the person is in.
8. The local authority is the lead agency for making enquiries, but it may require others to undertake them. The Guidance says if it does, it should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow. The local authority retains the responsibility for ensuring the enquiry is referred to the right place and is acted upon.
9. Where a crime is suspected the case should be referred to the police. Any criminal investigation by the police takes priority over all other enquiries, although a multi-agency approach should be agreed to ensure that the interests and personal wishes of the adult will be considered throughout.

The Council’s safeguarding process

10. The Procedures say if the Council receives concerns about the welfare of a vulnerable adult, it should decide within two working days whether an investigation under section 42 of the Act is required. If so, the Council should decide whether a multi-agency safeguarding adults meeting (known as a “strategy meeting”) is required to plan the investigation, decide who is carrying it out, and agree its timescales. This discussion should be held within the next five working days.
11. The purpose of the safeguarding investigation is to decide whether the local authority or another organisation, should do something to help and protect the adult. The scope of the enquiry, who leads it and its nature, and how long it takes, will depend on the circumstances.
12. The local authority also has a duty to consider whether the adult requires an independent advocate to represent and support them in the enquiry. Councils must arrange for an independent advocate where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them. Generally, independent advocates will stop representing a person when they are satisfied with any protection plan.
13. The Procedures say the investigation should start “without any reasonable delay and should ideally be completed within one month” of the strategy meeting. If longer is needed, a revised agreement about timescales must be reached with the local authority and other relevant organisations and recorded.
14. A “professionals-only” information sharing meeting may be held when it is not clear whether abuse has occurred, or when confidential information needs to be shared to prevent further risk of harm.
15. At the end of the investigation, a written report should be sent to the Safeguarding Adults Manager. The Council must then determine with the adult what, if any, further action is necessary to protect the person from abuse or risk. These actions should be set out in a protection plan.
16. A safeguarding case can be closed at any stage, provided there is an agreement of how issues will be followed up with the adult. The Procedures say feedback on progress of the case should be given to the person alleged to have caused the harm.

Continuing Healthcare

17. NHS Continuing Healthcare (CHC) is a package of care arranged and funded solely by the NHS. If an individual is eligible for CHC funding the local NHS clinical commissioning group is responsible for the person’s care planning, commissioning services and case management.

Mental Capacity

18. 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. It says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A key principle 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.
19. The Act introduced the Lasting Power of Attorney (LPA), which is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves.
20. If there is a need for continuing decision-making powers and there is no relevant LPA, the Court of Protection may appoint a “deputy” to make decisions for a person.
21. An “appointee” is responsible for making and maintaining any benefit or pension claims on behalf of someone who is incapable of managing their own finances. There can only be one appointee acting on behalf of that person at any one time. The appointee must spend the benefit in the claimant's best interests. The Department for Work and Pensions (DWP) decides whether the person needs an appointee and whether the person applying is suitable. It also monitors appointees and investigates if someone has concerns about the appointee's actions.

Complaint procedure

22. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
23. Regulations do not say how long a complaint investigation should take but expect this to be determined at the start of the procedure, usually in discussion with the complainant. During the investigation, the council must keep the complainant informed of progress ‘as far as reasonably practicable’. If the responsible body has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

Background

24. Mrs M was elderly and had dementia, she did not have the mental capacity to make decisions about her finances. She lived in a care home and received CHC funding from the NHS for the full cost of her care. Mrs M had two daughters, Ms F and Ms T. Ms T had an LPA for Mrs M’s health and welfare and was her DWP appointee.
25. In January 2017, the Court of Protection revoked the LPA as it had not been properly witnessed. Ms F raised a safeguarding alert with the Council. She was concerned Ms T had been misusing Mrs M’s money and spending it on herself, including using the proceeds of Mrs M’s house to fund her own property.
26. Following a strategy meeting in April 2017 the safeguarding case was closed as the DWP said it would investigate Ms T’s actions as appointee and make Ms F the appointee. The police advised they would take no action as, having previously investigated in 2014, they had seen no evidence of criminal activity by Ms T.

Safeguarding investigation

27. Mrs M’s case records show that in June 2017 a safeguarding alert was raised due to concerns about the management of Mrs M’s money. The Council opened a new safeguarding case and appointed an independent advocate. I have seen no evidence a strategy meeting was held within five working days to plan the investigation or determine who should lead it. Mrs M’s bank froze her account and the DWP suspended paying the pension due to the safeguarding investigation.
28. On 20 September 2017, the Council spoke to Ms T and Ms F separately to gather information. Ms F said she had spent about £2,000 of her own money on Mrs M for clothes, toiletries, and a TV.
29. The Council held a safeguarding meeting on 9 October 2017 with the local NHS CHC case manager, Ms F and Ms T’s partner. The Council asked Ms F and Ms T to bring in bank statements and receipts to show how Mrs M’s money had been used. It said it would apply to the Court of Protection to become Mrs M’s deputy due to the dispute between the two daughters. The minutes say the NHS would take the agreed actions and a further meeting would be held in six weeks to which Ms F and Ms T would be invited.
30. The Council held a professionals only safeguarding meeting on 5 December 2017. The notes say Ms F had brought in the bank statements and receipts, the expenditure was all accounted for, and the allegations against Ms F misusing Mrs M’s money were not substantiated. However information was still needed from Ms T. The CHC officer agreed to contact Ms T, Mrs M’s bank and apply to the Court of Protection on behalf of the local authority. The Council asked the DWP to keep the pension suspended until it had been granted deputyship.
31. A week later the Council and NHS discussed which organisation was responsible for taking the agreed actions. It is unclear whether any agreement was reached. The social worker then went on sick leave and there is no evidence of any further action being taken until February 2018.
32. On 12 March 2018 there was a safeguarding meeting involving Ms T and the independent advocate. The Council explained the safeguarding investigation was ongoing into Ms T’s use of Mrs M’s money. It was agreed the CHC would contact the police about this and apply to the Court of Protection on the Council’s behalf. The involvement of the independent advocate was ended but there is no evidence a protection plan was produced.
33. The Council also visited Ms F at home. It advised her the allegations against her had not been substantiated but that the Council would apply to become Mrs M’s deputy. In the meantime, if Ms F spent her own money on Mrs M, she could claim this back from the Council if she produced receipts.
34. There was then further discussion between the Council and NHS about responsibility for taking the agreed actions, including writing to Ms F about the outcome of the investigation. The Council sought legal advice which said the NHS should have led the safeguarding investigation as Mrs M was CHC funded. It was felt unlikely the Council could become Mrs M’s deputy as it had no need to use her pension to pay for her care. The notes of a strategy meeting held on 22 May 2018 say the NHS and police were leading the investigation but give no timescales.

Ms F’s complaint

35. Ms F complained to the Council on 23 May 2018 that it:
• had wrongly accused her of financially abusing Mrs M in October 2017.
• had not invited her to a further safeguarding meeting after October 2017, although the minutes said one would be held in six weeks and further meetings were held without her.
• had not refunded her despite her producing receipts as requested.
36. The Council acknowledged the complaint and asked the NHS to respond to some of it. The NHS said Mrs M would need to give consent to Ms F making a complaint on her behalf.
37. A safeguarding meeting was held on 3 July 2018 to agree a protection plan. The meeting decided a best interest decision would need to be taken about whether the Council should apply to be Mrs M’s deputy.
38. This plan was discussed with Ms F on 24 August 2018. There are no minutes of this meeting, but Ms F says it broke down due to a dispute with the officer who wrongly accused her of being the alleged perpetrator of financial abuse. Ms F made a second complaint on 25 September 2018 that at the August meeting the Council had said it would not refund her as she was under investigation by the police, which was incorrect. She said the officer had treated her like a criminal and made her feel degraded by the way she spoke to her.
39. The case records show Ms F chased the Council several times for a response to her complaints and an update on the safeguarding investigation.
40. The Council held a further safeguarding meeting with Ms F on 26 November 2018. This confirmed that the police had decided to take no further action against Ms T, but the Council’s application for deputyship was being pursued. The Council has sent evidence it completed a referral form to the Court of Protection on 1 October 2018. The form includes information from the DWP which refers to the Council becoming Mrs M’s appointee, but it is unclear to me whether or when this happened.
41. Mrs M sadly passed away a few days later and the safeguarding investigation was closed in December 2018. The Council continues to hold Mrs M’s pension, which has not been paid to the family due to problems with probate and Ms F contesting Mrs M’s will.

Ms F’s complaint to the Ombudsman

42. Ms F approached the Ombudsman in January 2019. As she had not yet received a response to her complaint from the Council, it was too soon for us to investigate.
43. The Council said it was still investigating the complaint. Ms F sent the Council a recording she had made of the August 2018 meeting. This led the Council to seek advice about data protection issues. It met Ms F on 28 August 2019 to discuss her complaint because, as Mrs M had died, some of the actions Ms F had wanted were no longer achievable.
44. The Council responded to Ms F’s complaint in October 2019. It said the complaint had been put on hold until the safeguarding investigation had been completed. The Council apologised that, following the closure of the safeguarding case in December 2018, it had not written to Ms F until March 2019 to ask if any issues remained outstanding. In response to her complaints it said:
• The allegations of financial abuse had been dealt with under the safeguarding procedures.
• The meeting on 12 March 2018 was a professional's only safeguarding meeting. Ms F had been invited to meetings on 24 August 2018 and 26 November 2018, but the Council had not written to her to confirm the safeguarding investigation had been closed in December 2018.
• The Council had reviewed about £300 worth of receipts, although some were illegible, which were for purchases including food, drink and clothing. There was no receipt for the TV. The Council said it could not refund food and drink purchases as these were provided by the care home. The Council accepted that Ms F was under the impression she would be refunded and had not been told what items could and could not be included. It therefore offered Ms F £200 for raising her expectations and to reimburse the clothing costs.
• It could make no finding about the way the officer spoke to Ms F in the August 2018 meeting. Ms F’s recording had been reviewed but did not add any further evidence. The Council apologised if comments at the meeting had made Ms F feel degraded or like a criminal.
45. Ms F declined the payment offered by the Council and complained to the Ombudsman.

My findings

a) The safeguarding investigation

46. The Council received a safeguarding alert in June 2017 expressing concern about the management of Mrs M’s finances. It made enquiries and put these concerns to Ms F and it was not fault for it to do so.
47. At the end of the enquiries councils must decide if the concerns are substantiated and what actions to take. The Ombudsman cannot question whether a council's decision about this 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. I have therefore considered how the Council carried out the safeguarding investigation.
48. I have found fault in the way the safeguarding case was managed.
49. I have seen no evidence of a strategy discussion within five working days of the June 2017 alert. In response to my draft decision, the Council said it had received three alerts. The first two were closed as the Council considered the management of Mrs M’s finances had been resolved and there was no new risk of financial abuse. It decided to investigate after the third referral was received. However, there was still no strategy meeting. This was fault and its absence meant it was unclear from the start which organisation was leading the investigation and what the timescales were. This meant there was a dispute between the Council and NHS and actions were not taken, causing delay in the process.
50. At the meeting with Ms F in October 2017 it was agreed a further meeting would be held six weeks later. That second meeting became a professionals only meeting, but there is no evidence Ms F was informed of this. This was fault.
51. The DWP froze the pension but it is unclear whether the Council then became the appointee or how Mrs M’s money was being managed from October 2017. I find there was some confusion about whether the Council had decided to apply to be Mrs M’s deputy or appointee or both.
52. There is no evidence the actions agreed in December 2017 were taken until March 2018. In response to my draft decision the Council explained this was due to staff sickness, but nonetheless this delay was fault.
53. The Council was aware by 5 December 2017 that the allegations against Ms F were not substantiated, but it did not inform her of this until March 2018. Nor was there any clarity in the safeguarding records that the continuing investigation was into Ms T as the alleged perpetrator. This was fault and led to confusion later when Ms F complained. In my view, it would have been clearer if the Council had closed the safeguarding investigation into Ms F in December 2017 and opened a fresh one into Ms T.
54. This confusion caused the dispute in August 2018 where Ms F says the officer said she was the alleged perpetrator. I have seen no evidence that Ms F was considered to be the alleged perpetrator after December 2017. I cannot say whether the officer spoke inappropriately to Ms F in the meeting, but I consider fault by the Council caused the dispute.
55. Ms F’s allegations against Ms T were a matter for the police but the police were not contacted until early 2018. This was fault by the Council, caused by the lack of planning of the safeguarding investigation. The police investigation then took precedence and was not completed until November 2018. There is no fault there.
56. There were several safeguarding meetings at which actions were agreed, but the protection plan was not agreed until July 2018. I find this delay to be fault as I can see no reason why the plan was not agreed in March 2018.
57. I disagree with the Council’s position that it should not have led the safeguarding investigation because it was not responsible for Mrs M’s care. Its safeguarding duty applies regardless of whether the Council is meeting Mrs M’s needs. Misuse of Mrs M’s pension would not affect the CHC funding for her care, but rather her other spending, such as clothes or household items. In my view, the Council should have taken the lead on the safeguarding investigation and alerted the police in July 2017. Once the police had completed their investigation into Ms T, the Council would then decide if any other action was needed to protect Mrs M’s finances. If the Council had contacted the police in July 2017, it could have completed its investigation by March 2018. Instead the matter was delayed until November 2018.
58. I have carefully considered whether these delays caused injustice to Ms F. Safeguarding investigations are there to protect the vulnerable person, but they can be inherently stressful and the Ombudsman expects them to be carried out in a timely way. I consider the delays caused Ms F frustration, distress and anxiety.

b) Refunds

59. The Council has accepted it told Ms F it would refund her money she spent on Mrs M if she produced receipts, but that it did not clarify whether all purchases would be refunded. Ms F then produced receipts but has not been refunded. Whilst that was in part caused by the legibility of some of the receipts, I find it was fault not to refund Ms F.
60. The Ombudsman makes his findings on the balance of probabilities. That is to say, we decide whether it is more likely than not that something has happened. I cannot say how much Ms F spent as not all receipts are available, but I have no reason to doubt her statement that she has spent about £2,000 on Mrs M. Ms F has consistently referred to this amount since September 2017 and on the balance of probabilities, I consider it more likely than not that she has spent this amount.
61. It is unclear to me on what basis the Council created an allowance for Mrs M, how much this was or who was managing it. If the Council was Mrs M’s appointee after October 2017, I have seen no evidence it had oversight of her finances or managed her spending. I consider this to be fault and it has led to the Council now holding a part of Mrs M’s pension, which cannot be returned to her estate due to probate issues. This is an injustice to Mrs M which can no longer be remedied as she has passed away.

c) Complaint handling

62. There was a significant delay in responding to Ms F’s complaint. The Council says it could not respond to the complaint until the safeguarding investigation was completed. I disagree with this view. The Council had established by December 2017 that Ms F was not an alleged perpetrator and was not under investigation. I can therefore see no reason why it could not have responded to her complaint in May 2018.
63. Regardless, the safeguarding investigation was completed in December 2018, but the Council did not respond to the complaint until October 2019. This is fault. Whilst input from the NHS and advice on data protection were needed, I can see no good reason for the delay in responding.
64. This has caused significant time and trouble to Ms F, as she had to pursue her complaint for almost eighteen months and bring it to the Ombudsman. In response to my draft decision, the Council said it was reviewing the learning from the way this complaint was handled and all staff would be reminded of the process.

Agreed action

65. To acknowledge the injustice caused to Ms F by the faults identified, the Council has agreed to, within a month of my final decision:
1. Apologise to Ms F.
2. Pay her £2,000 to refund the monies she spent on Mrs M.
3. Pay her £200 to acknowledge the time and trouble she has been put to.
4. Remind adult safeguarding staff of the Council’s duties when it requires others to undertake safeguarding investigations, and of its duty to hold initial strategy meetings to plan those investigations.
5. Clarify with the local NHS the responsibilities for safeguarding investigations about adults who are CHC funded.

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Final decision

66. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman