Summary: Ms X complains the Council failed to act to safeguard her sister, Mrs Z, from harm. She says it also failed to carry out a proper safeguarding review after Mrs Z’s death and that these failings have caused distress to her family. There was no fault by the Council.

The complaint

1. The complainant, whom I shall call Mrs Z, is deceased. She is represented by her sister, Ms X.
2. Ms X complains on Mrs Z’s behalf that the Council failed to safeguard her from harm when Ms X reported serious concerns in March 2018.
3. Specifically, Ms X says the Council:

• Failed to respond to her contacts, causing her to have to track down the allocated social worker;
• Failed to contact medical professionals whose details Ms X provided when reporting her concerns;
• Failed to properly assess Mrs Z’s mental capacity;
• Failed to assess Mrs Z’s husband’s mental capacity;
• Failed to do what was agreed on 15 March 2018; and
• Wrongly stated a home visit on 15 March 2018 amounted to an assessment.

4. Ms X also says the Council failed to carry out a proper safeguarding review after Mrs Z’s death in May 2018.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

7. (Local Government Act 1974, section 26A(2), as amended)
8. 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)

Back to top

How I considered this complaint

9. I read the complaint and spoke to Ms X on the telephone. I made written enquiries of the Council. I considered the Council’s duties under the Care Act 2014 and the Mental Capacity Act 2005. I considered the records the Council sent me in response to my enquiries. These documents concern Mrs Z and her husband and I cannot disclose them to Ms X. I shared a draft of this decision with both parties and invited their comments. I amended the wording of the second and third bullet points of the complaint as a result of Ms X’s response to the draft.

Back to top

What I found

Background

10. Mrs Z lived with her husband. Ms X became concerned about Mrs Z, her sister. She contacted the Council on 6 March 2018. She told the Council she was concerned about the couple’s consumption of alcohol as well as poor nutrition and the condition of their home. She referred to the effect on a medical condition Mrs Z had, and to missed medical appointments.
11. A social worker visited the couple on 15 March 2018. Ms X was also present on this occasion.
12. Mrs Z died in May 2018.

What should have happened?

13. When someone raises concerns about an adult, councils with social care duties must respond to those concerns by checking if they need to act to safeguard the person. However, a person is assumed to have mental capacity unless there is evidence to the contrary. If there is doubt, a social worker should decide whether the person lacks capacity to make decisions. The threshold for mental capacity is low, and the Council cannot decide someone lacks capacity to make decisions just because their decisions are unwise or cause them harm. The Mental Capacity Act 2005 also accepts that capacity can fluctuate. In this case, given what Ms X reported and what the records show the social worker found, I would have expected a social worker to consider whether to assess Mrs Z’s capacity.
14. A Safeguarding Adult Review is a multi-agency process that considers whether or not serious harm experienced by an adult, or group of adults at risk of abuse or neglect, could have been predicted or prevented.

What happened, and was this fault?

Responding to Ms X’s contacts

15. The social care records show the Council responded to Ms X’s contact on 6 March 2018 by arranging a home visit. This visit took place on 15 March 2018. The records also show that a call from Ms X on 9 March 2018 failed to transfer properly. I cannot say how the arrangements for the visit were agreed with Ms X, but I note it arranged the visit promptly and Ms X was present on 15 March 2018. I do not find the Council at fault.
16. In response to the draft decision, Ms X said she had to chase the social worker, and that she heard nothing between 15 March 2018 and Mrs Z’s death. However, the social worker had assessed Mrs Z as having capacity to make decisions. The social worker would not therefore have been able to share information, in the same way that I am not able to share the documents I have seen.

Contacting medical specialists

17. I accept Ms X provided the contact details for a hospital unit and Mrs Z’s GP. It was for the social worker to decide if she needed to contact either of them. But it is significant that the threshold for mental capacity is low, much lower than family members often wish when a person makes unwise decisions about their health. Given the evidence about Mrs Z’s previous history in the Council’s records, which the social worker saw, it is unlikely on the balance of probabilities that she would have found Mrs Z lacked capacity if she had contacted those previously involved in her care.

Assessing Mrs Z’s capacity properly

18. I have seen the social worker’s decision on Mrs Z’s capacity. It is clear Mrs Z’s decisions were unwise and Ms X’s wishes for her care were sensible ones. However, as stated above, the threshold for a person to have capacity is low. I cannot say the social worker should have found Mrs Z lacked capacity. I do not find the Council at fault.

Assessing Mrs Z’s husband’s capacity

19. There was no reason to assess Mrs Z’s husband’s capacity as he was not the person said to be at risk. While Ms X says he was incapable of looking after Mrs Z, that was not a reason to assess his capacity. The issue was whether Mrs Z had capacity to decide whether she wished him to care for her. The Council was not at fault.

Doing what was agreed on 15 March 2018

20. The social worker assessed Mrs Z as having capacity on 15 March 2018. The records show the Council acted on the view the social worker took about what was possible, given Mrs Z had capacity. While Ms X maintains the social worker was not competent to assess capacity, social workers are entitled to do so. This was a matter of the social worker’s professional judgment, not one of fault.

The home visit as an assessment

21. I have seen the assessment the social worker recorded after visiting on 15 March 2018. This shows she had assessed Mrs Z needs and considered her mental capacity. I do not find the Council at fault. Ms X remains of the view that the social worker did not properly assess Mrs Z’s capacity.

A safeguarding review

22. The Council had not found Mrs Z was at risk of abuse or neglect. The coroner also raised no concerns. There was therefore no reason to carry out a Safeguarding Adult Review. I do not find the Council at fault.

Back to top

Final decision

23. I have not upheld the complaint as there was no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman