The Ombudsman's final decision:
Summary: Mr X complains the Council failed to deal properly with safeguarding concerns involving his mother in November 2018, causing them both much distress. The Council failed to deal with the concerns under its safeguarding policies or procedures, or take account of its duties under the Equalities Act 2010 and Mental Capacity Act 2015. It needs to apologise for the avoidable distress caused, pay financial redress and take action to ensure it deals properly with such matters in the future.
- The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with safeguarding concerns involving his mother in November 2018, causing them both much distress.
The Ombudsman’s role and powers
- 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)
- 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, sections 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have:
- considered the complaint and the documents provided by Mr X;
- discussed the complaint with Mr X and his mother;
- considered the comments and documents the Council has provided in response to my enquiries; and
- shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.
What I found
Legal and administrative framework
- 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 to 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.
- “If you are unable to access the person whom you have the concerns about as a practitioner or you have difficulty in accessing them without the third party to whom the concern relates being present, you should consult the local authority appointed worker or if the person does not have an allocated worker, the Luton Safeguarding Adult Team for advice.”
- “As part of this pre-concern phase; you may need to discuss the matter with other agencies such as the police; The Care Quality Commission; the adult’s GP; and the care commissioner.”
- “If the issue cannot be resolved through these means or the adult remains at risk of abuse or neglect, then the local authority’s enquiry duty under Section 42 of The Care Act continues until it decides what action is necessary to protect the adult and by whom and ensures itself that this action has been taken. A Safeguarding Concern should be made at this point.”
- “It must be assumed that people have the capacity to make decisions and be given all practical help before anyone treats them as not being able to make their own decisions, in line with the Mental Capacity Act 2005.”
- “Central to the notion of safeguarding is the concept of continuous risk assessment and management. At the earliest stage of an enquiry, a risk assessment must be completed to ascertain the likelihood and potential impact of the risk that the person faces. The result of this should form the basis on any strategy discussion to protect the individual”.
- “If the person alleged to be responsible for abuse or neglect is someone who has care and support needs in their own right, the Council must consider their need for support.”
- Mr X, who is autistic, lives with his mother, Miss Y, who has physical disabilities which cause her pain and affect her mobility. Mr X is his mother’s carer.
- Mr X asked the Council to assess his mother’s needs in June 2018 and Miss Y agreed to this. He also asked for a carer’s assessment.
- A Social Care Assessor visited Miss Y to assess her needs in August. She also assessed Mr X’s needs as her carer. The Social Care Assessor identified the need for equipment and minor adaptations to meet Miss Y’s needs. The assessment says there was no need for a Mental Capacity Act assessment. It says Miss Y’s family was going to adapt her home to meet her needs (level access shower, and wheelchair accessible entrance). The Social Care Assessor referred Mr X for a one-off carer’s grant (£200), so he could go to a gym at least once a week to avoid social isolation and the risk of his caring role breaking down.
- The Social Care Assessor spoke to Mr X on 17 September. Mr X said the adaptations were starting that week and would take three weeks. He invited the assessor to come and see the new bathroom when completed.
- On 23 November the Council received a safeguarding concern about Miss Y from a charity. This said Mr X was not dealing with finances properly as there was no heating and he would not pay for the maintenance.
- Under the “pre-reporting stage” of the Multi Agency Safeguarding Adults Practice Guidance, the Council decided to:
- assess Miss Y’s needs;
- assess her capacity to manage her finances;
- consider “safe custody” if she lacked capacity;
- discuss the concerns with Miss Y to get her views and wishes.
- relatives had provided oil heaters for the home and arranged for a contractor to fix the central heating;
- he did not have power of attorney for his mother;
- his mother had a wet room, could manage her personal care but needed help getting into the shower;
- their relatives provided most of their meals, which they kept in the freezer;
- his mother was refusing a mental capacity assessment and was refusing to engage with a Social Worker;
- he did not like strangers because of his autism and did not want a Social Worker to visit;
- lots of Social Workers and Occupational Therapists had visited them at home.
- they had oil heaters and had arranged for contractors to do repairs;
- she could not give contact details for other family members as they lived too far away;
- she had no concerns about personal care or daily living tasks as Mr X helps with everything;
- she did not want any help from Social Services;
- she did not want a mental capacity assessment and displayed “no concerns” while communicating.
Mr X’s complaint
- Mr X complained to the Council about what happened. He said:
- Social Worker B had been persistent and forceful over the telephone;
- Social Worker B had wandered around outside their home peering through the windows, banging on the doors and taking photographs of the property;
- he and his mother were frightened and did not know who the person was;
- Miss Y had recently been assessed and no concerns had been raised;
- the Council needed to listen to the recordings of his telephone calls with Social Worker B and the Manager, as they would support what he had said.
- it needed to speak to Miss Y to check she was alright following the safeguarding referral;
- Social Worker B looked through the window because no one answered the door;
- she used her phone to make calls while outside their property but did not take any photographs;
- she had spoken to Mr X before visiting and the Team Manager had told him who she was before she arrived;
- the Social Care Assessor’s involvement had ended on 8 October, so “could not be used to complete a new concern that had been raised”;
- it would have been helpful if the Team Manager and the officer Mr X had spoken to when the Team Manager was in a meeting had called him back, but they both felt they had given him all the information they could.
- it could not make enquiries under section 42 of the Care Act 2014 without finding out if Miss Y needed that type of intervention at that time;
- contact with Miss Y’s GP was important as no other professional could report on the current state of affairs;
- it is not the Council’s procedure to draw up a written risk assessment before information gathering;
- escalating the matter to a joint visit with the Police was an appropriate and proportionate response to the concerns;
- it does not accept asking the GP to consider mental capacity was unnecessary and intrusive;
- it does not record telephone calls to/from officers’ landlines;
- it acted in Miss Y’s best interests;
- it accepts Mr X may have been upset by its actions and is happy to reiterate its apology but does not accept the need to pay financial redress to him.
Is there evidence of fault by the Council which caused injustice?
- We do not find fault with the Council for wanting to make enquires into the safeguarding concerns raised by the charity.
- However, the Council did not make enquiries under section 42 of the Care Act 2014. The Council dealt with the concerns under the “Pre Reporting Stage” of the Multi Agency Safeguarding Adults Practice Guidance, a stage which does not appear in its own Safeguarding Adults Policy. This meant it failed to carry out a formal risk assessment before taking action which caused much distress to Mr X and his mother. That was fault by the Council. Risk assessments are needed to make sure any action taken is proportionate. It could have avoided this fault if it had followed its own Safeguarding Adults Policy.
- Mr X told Social Worker B about his personal circumstances and that he did not like strangers visiting. This included information about his disability. The Council should have considered the need to make a reasonable adjustment under the Equality Act 2010. This could have involved sending someone to visit who was already known to them. There were at least two officers who could have done this, the Social Care Assessor or the Team Manager. There was no reason why this should have caused a delay. This could have avoided the distress caused by the visit on 29 November, the visit with Police Officers on 30 November and the involvement of Miss Y’s GP. It was fault by the Council that it did not consider its duties under the Equality Act 2010.
- If the Council had checked its own records it would have seen that Mr X and his mother had recently spent money on adapting their home to meet her needs. This explained why they were struggling to find the money needed to repair the heating in their home. The Council would also have seen that Mr X had invited the Social Care Assessor to visit them to see the adaptations.
- The Social Care Assessor had not questioned Miss Y’s mental capacity in August. The safeguarding concerns did not raise any issues about Miss Y’s mental capacity, so there was no reason to question it under the Mental Capacity Act 2005. Furthermore, when Social Worker B spoke to her on 30 November, Miss Y made her views very clear. She said she did not want a mental capacity assessment and she displayed “no concerns” while communicating. Miss Y’s comments were coherent and confirmed what her son had said the previous day. But the Council took no account of Miss Y’s views and requested a visit by her GP and a capacity assessment. The Council failed to empower Miss Y, as required by the Care and Support Statutory Guidance. That was fault by the Council.
- The Council’s faults caused injustice to Mr X and his mother as they were both caused avoidable distress. They have both lost trust in the Council because of its actions. Mr X has also been put to the trouble of pursuing his complaint.
- To rectify its faults and remedy the injustice it has caused, we recommended the Council:
- within four weeks write to Mr X and his mother apologising for the failure to deal properly with the safeguarding concerns and the distress this caused;
- within four weeks pay Miss Y £250 for the distress she has been caused, and Mr X £350 for his distress and the time and trouble it has put him to in pursuing the complaint;
- within eight weeks review its safeguarding policies and procedures to make sure all actions are underpinned by a risk assessment; and
- within eight weeks create and issue a guidance note to relevant staff about the requirements of the Mental Capacity Act 2005 and Equality Act 2010. The guidance should refer to the issues found in this investigation. Specifically, it should explain the steps officers must take to explore reasonable adjustments when dealing with people with disabilities. It should also explain the principles behind the Mental Capacity Act, most particularly that people should be presumed to have capacity, unless there is clear doubt.
Despite initially questioning them, that Council has now accepted our findings and agreed to take the action we have recommended.
- I have completed the investigation as the Council has agreed to take the action we recommended to remedy the injustice caused by its faults.
Investigator's decision on behalf of the Ombudsman