The Ombudsman's final decision:
Summary: When the Council was notified about concerns for Mr B’s welfare, it failed to properly consider whether to carry out an assessment of Mr B’s care and support needs and did not always properly consider whether to make safeguarding enquiries. The Council has agreed to apologise and make a payment to Mr B, and to take action to prevent similar failings in future.
- Mr B complains that the Council has:
- failed to take appropriate action when it has been notified of concerns about his welfare;
- failed to provide appropriate support so that he could return to live with his wife and son;
- failed to carry out a social care needs assessment; and
- failed to provide an advocate to help him liaise with the Council.
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)
- 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
- I have:
- considered the complaint and the documents provided by the complainant;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council and the complainant the opportunity to comment on my draft decision.
What I found
The law and Council policy
- 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. (section 42, Care Act 2014)
- The Council's safeguarding policy states that where a person does not meet these criteria, it may carry out enquiries at its own discretion. It says that non statutory enquiries would relate to an adult who is believed to be experiencing, or is at risk of abuse, neglect or self-neglect and
- Does not have care needs (but might have just support needs); or
- Has care and support needs but is believed to be able to protect themselves.
- The needs must arise from or be related to a physical or mental impairment or illness.
- Because of the needs, the adult must be unable to achieve two or more of the following outcomes:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult's home safely;
- Maintaining a habitable home environment;
- Developing and maintaining family or other personal relationships;
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- Carrying out any caring responsibilities the adult has for a child.
Key events and analysis
- Since July 2017, the Council has received ten referrals from the police due to concerns about Mr B’s welfare. The referrals have all related to concerns about Mr B’s mental health.
- The Council has generally sent the referrals either to Mr B’s doctor or the community mental health team. Mr B considers the Council should also have made section 42 safeguarding enquiries and provided him with support.
Section 42 safeguarding enquiries
- The Council is required to make safeguarding enquiries where it considers a person needs care and support and is experiencing or is at risk of abuse or neglect. The Council decided not to commence safeguarding enquiries when it received the police referrals because it did not consider the threshold for enquiries had been met.
- Most of the referrals did not contain any concerns about abuse or neglect by a third party, and so it is clear why the Council considered the threshold for enquiries had not been met. However, one referral in September 2018 said that Mr B felt he was being constantly bullied by his neighbours. I consider that on that occasion, the Council failed to properly consider whether to make safeguarding enquiries. This was fault.
- The Council’s records also show that Mr B telephoned the Council in November 2017 about one of the police referrals and directly asked for support. He said that he was being intimidated and harassed by his neighbours and that the police, his housing association and the mental health team were not working together to support him and his wife. The Council signposted Mr B to an advocacy service and the citizens advice bureau to support him to make a housing complaint. I consider the Council failed to properly consider whether to make safeguarding enquiries. This was fault.
- In December 2018, Mr B wrote to the coroner’s office providing details of the problems he had been experiencing. The coroner’s office then made a referral to the Council. The information Mr B provided to the coroner included references to abuse from his neighbours. The Council then decided to commence non statutory section 42 enquiries.
- The Council met with Mr B and his mother and then met Mr B’s landlord to discuss the problems he had been having with his neighbours.
- The Council’s records show it was then agreed to put the section 42 safeguarding enquiries on hold. The police had charged Mr B with two offences and Mr B said that he wanted to concentrate on the court case. The Council advised Mr B to get back in touch if he wanted to continue with the enquiry process. I have found no evidence of fault in the Council’s actions after it decided to commence safeguarding enquiries in December 2018.
- Councils are required to carry out an assessment for any adult with an appearance of need for care and support. The Council’s records do not show whether the Council considered if Mr B may have a need for care and support when it received the police referrals, or when Mr B directly asked for support in November 2017. This was fault.
- When the Council met Mr B in February 2019, it offered to carry out an assessment of his need for care and support. Mr B initially agreed but later told the Council that he did not want one until an independent advocate was provided and we had completed our consideration of his complaint.
- Councils are only required to provide independent advocates in certain circumstances, and where there is no appropriate adult available. When the Council contacted Mr B in December 2018, he gave permission for his mother to speak on his behalf. The Council considered there was an appropriate adult available to support Mr B and so did not immediately offer to provide an independent advocate. When Mr B told the Council that he wanted an independent advocate, one was provided. I have found no evidence of fault here.
- If Mr B decides that he does want the Council to continue with the section 42 process, or carry out a care and support needs assessment, it is likely that he will be entitled to an independent advocate to support him with this. Mr B considers the Council should also have provided an advocate to support him with his complaint, and with liaising with the Council. However, the Council is only required to provide an advocate to support Mr B with the specific care and support processes detailed above in paragraph eleven. I have found no evidence of fault here.
- If the Council had properly considered whether Mr B had an appearance of need for care and support when he asked for support in 2017, it is likely that it would have offered to carry out an assessment, as it did in 2019. The eligibility criteria for support are included in paragraph nine above. As Mr B has not had an assessment of his care and support needs, I cannot conclude with any certainty whether Mr B would have had needs which were eligible for support.
- On the balance of probabilities, I consider it likely that if there had been no fault by the Council, it would have carried out safeguarding enquiries in 2017 and provided Mr B with some support with his housing situation and the problems he was having with his neighbours. I consider the lack of support may have contributed to Mr B later leaving his family home, but there were clearly other factors involved. The police referrals mention Mr B’s mental health, his alcohol dependency, problems in his relationship and his frustration at not getting the medication he felt he needed. I do not consider the Council’s failure to provide housing support was the only reason Mr B left his family home. But the problems Mr B was having with his neighbours may have been resolved if the Council had provided some support in 2017.
- Within four weeks, the Council will make a payment of £200 and apologise to Mr B for the injustice he suffered as a result of the failings identified in this case. It will also clearly explain to Mr B what he needs to do if he would like to continue with the section 42 process and/or have a needs assessment and if he would like the support of an independent advocate.
- Within eight weeks, the Council will:
- remind its adult social care staff of the statutory requirement to make enquiries under section 42 of the Care Act 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 they cannot protect themselves;
- remind its adult social care staff of the statutory requirement to carry out an assessment for any adult with an appearance of need for care and support; and
- ensure that when it is notified of concerns about a person’s welfare, and it decides not to offer an assessment of needs or not to commence safeguarding enquiries, it properly records the reasons for its decision.
- I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman