Summary: The Council failed to communicate properly with Ms A about the safeguarding concern she raised and it apologises for that. It agrees to recognise the distress to Mr X and his family further by a payment in acknowledgement. It has also agreed to waive the additional fees it levied for her father’s stay in residential care.

The complaint

1. Ms A (as I shall call the complainant) complains about the way the Council managed a safeguarding alert she raised about her elderly father Mr X. She says the way the Council managed the alert prolonged her father’s exposure to risk. She also complains about delay in retrieving his possessions, an attempt to charge him for his residential placement and failure to manage harassment by his ex-partner.

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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. 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

3. I considered the written information provided by the Council and by Ms A. I spoke to Ms A. Both Ms A and the Council had an opportunity to comment on an earlier version of this statement before I reached a final decision.

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What I found

Relevant background information and guidance

4. 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)
5. 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 (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. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.

A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.

6. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA 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. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

There are two types of LPA:

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened – the first safeguarding alert

7. Mr X, who is married with adult children (one of whom is Ms A) has mild dementia. Ms A managed Mr X’s finances for him on an informal basis. While living at home with his wife, Mr X met another dementia sufferer (Mrs G) at a day centre they both attended.
8. At Mrs G’s home in March 2018, Mr X told a visiting housing officer that Ms A was not giving him enough money. He said he did not want to raise concerns about mismanagement, he just wanted more of his pension to spend. He said he wanted to move in with Mrs G.
9. A social worker contacted Ms A to discuss what was happening. Ms A said her father had managed his own money until September 2017 when his dementia became worse. He asked his wife and daughter to manage his finances instead. Ms A told the social worker that after the bills were paid, there was no more money to give him than the amount he was already being given. She said he had been quite content until he met Mrs G.
10. The social worker spoke to Mr X again. He said he knew his daughter was managing his money properly, but he was frustrated that he could not access more of his pension. He did not want the Council to investigate his concerns through its safeguarding procedures. The Council concluded that despite his dementia, Mr X had insight into his situation and it closed down the safeguarding enquiry.

The second safeguarding alert

11. Ms A then also contacted the Council with concerns abut her father and particularly about Mrs G’s influence over him. She said her father had suddenly decided to leave her mother and had now chosen to move all his pension into a separate bank account and not take responsibility for any household bills. She added her concerns that her father had never managed his own medication before.
12. A screening manager considered the alert which Ms A had raised. The manager decided that on balance a safeguarding investigation was not required and closed the case down. The Council did not contact Ms A to explain. Mr X remained living at Mrs G’s home.

The emergency placement

13. On 29 August Mr X was taken by the police to an emergency care home placement after an argument in which Mrs G attacked him. He wanted to see his daughter, he wanted his belongings from Mrs G’s home and he said he wanted to stay in the care home as he did not think he would be able to go back to his marital home.
14. A social worker was allocated to manage Mr X’s case. She telephoned Ms A who asked what had happened about the safeguarding referral she had raised in March.
15. Mr X stayed in the care home. At a safeguarding planning meeting on 22 October, he said he wanted to return to his marital home, he did not want to see Mrs G again and he wanted Ms A to apply formally to manage his finances. Ms A says she explained that as Mr A would be sleeping in a separate bedroom, she needed some time to decorate and make ready the spare room. Mr X returned to his home on 28 October. The Council issued an invoice for his stay from 10 October to 29 October.

Retrieval of Mr X’s property

16. The Council says that a social worker who went to Mrs G’s house on 29 August made an attempt to retrieve Mr X’s property but Mrs G was very reluctant to hand over anything apart from his pyjamas. Mrs G said his bank cards were missing and she had given his medication to the police. She expected Mr X to return. When her own daughters arrived and went to find Mr X’s clothes, Mrs G attacked one of them.
17. The Council’s case recordings show some attempts were made by social workers to retrieve the property but they were not successful. The Council says the police would not help as they said it was a domestic matter. The Council says Mr X reiterated that he did not want the police involved.

Harassment by Mrs G

18. The Council’s files show Mrs G tried to visit Mr X at the care home. Ms A also reported to the social worker that she was receiving what she believed were silent phone calls from Mrs G.

The complaint

19. In December Ms A complained to the Council. She complained that the Council had not pursued her safeguarding alert in March, that it had not retrieved her father’s possessions, that it had not pursued a restraining order against Mrs G despite some attempts to contact Mr X, and that it had charged for his stay in the care home.
20. In January a team manager responded to the complaint. She said it appeared the outcome of the alert had not been communicated to Ms A. She said discussions with Mrs G and her family suggested that because of Mrs G’s own ill-health, it would not be possible to retrieve the belongings and said ‘unfortunately’ this had led to a lack of progress. She said the restraining order was a matter for Mr X’s family to resolve. Finally, she said the Council would follow up a query by the social worker about a review of the charges for Mr X.
21. Ms A was unhappy with the response and complained to the Ombudsman.
22. The Council finally succeeded in obtaining Mr X’s property from Mrs G’s house in February 2019. It says because of Mrs G’s own illness and her belief that Mr X would return, the process had to be managed over a period of time. Ms A says the first social worker told her that she could not ask the police to accompany her to Mrs G’s house, but she says the second social worker did obtain police assistance.
23. The Council acknowledges that the two safeguarding referrals were conflated when they should have been recognized as separate issues. It says it closed the second referral prematurely. It also acknowledges that it failed to communicate with Ms A, and did not assess Mr X’s needs at that time to establish if he had capacity to make his own decision about his intention to move in with Mrs G. It recognizes that it did not follow its policies properly and apologises to Ms A for the distress caused to her. It adds, ‘a thorough case audit will now be completed with the screening manager who attended to both safeguarding referrals, to ensure that all learning points arising from this matter are communicated and well understood.’
24. The Council says Mr X was staying in a ‘winter resilience’ placement at the care home which is free for 42 nights. It says it contacted Ms A after that period but she pointed out that he had been placed there by the Council, not his family. The Council says it has now reviewed the matter and has waived the charge, as Mr X was placed there under safeguarding procedures.
25. The Council says there was a further error in its processes which led to a delay in responding to Ms A’s concerns about Mrs G.

Analysis

26. The Council’s failure to properly address the second safeguarding alert (raised by Ms A) led not only to months of frustration for Ms A, but also, potentially, to a more difficult situation for Mr X and his family as a whole. It is not possible now to conclude what the outcome of a capacity assessment would have been in March 2018, but at least Ms A and her mother would have had the comfort of knowing that Mr X was capable of making his own decision. As it was, the family were left with months of uncertainty.
27. There was a failure to manage the retrieval of Mr X’s belongings from Mrs G’s house with any urgency. He was left without some of his possessions, and particularly photographs of sentimental value for some months.
28. The Council should not have tried to charge Mr X for the additional days spent in the care home. However, it has now waived those fees.
29. When Ms A reported further concerns about Mrs G, the Council should have responded properly and within its timescales. That was fault on the part of the Council.

Agreed action

30. The Council apologises for its failure to communicate properly with Ms A, and to address the second safeguarding alert; within one month of my final decision it also agrees to make a payment of £300 to Mr X and his family to recognise the anxiety caused;
31. The Council has already addressed the learning needs arising from the errors in its safeguarding processes so I made no further recommendations in that respect;
32. Although the retrieval of Mr X’s possessions was made more difficult by the need to manage Mrs G’s behaviour, the Council should have taken control of the situation sooner and had an action plan. It will review what happened here and consider what steps it will put in place in future.

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Final decision

33. There was fault on the part of the Council which caused injustice to Mr X and his family.

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Investigator's decision on behalf of the Ombudsman