Summary: The Council is not at fault for starting safeguarding procedures or contacting other bodies about its concerns.

The complaint

1. The complainant whom I refer to as Mrs C complains about services provided to her sister, who I refer to as Ms D.
2. Mrs C complains about the way the Council has treated her and Ms D. Mrs C says the Council ignored her complaints about the unprofessional and inappropriate behaviour of Ms D’s social worker, her request for a change of social worker and an urgent case review. Mrs C says instead of investigating her concerns the Council started safeguarding procedures on the basis that she had stolen Ms D’s money. This resulted in the Council becoming the deputy for Ms D’s finances and a suspension of Ms D’s benefits and private pension.
3. Mrs C says the Council also: -
1. breached confidentiality and data protection legislation, manipulated minutes of meetings and deleted evidence from its records;
2. failed in its duty of care to Ms D and failed to understand the complexity of her needs following abuse she suffered in 2005;
3. ignored the views of others who said the social worker frightened Ms D.
4. Mrs C says the Council’s actions have caused her distress and caused Ms D financial difficulties.

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What I have investigated

5. I have investigated the issues listed above, except for (b) for the reasons set out at the end of this statement.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I read information Mrs C provided as part of her complaint and discussed the complaint with her. I made enquiries of the Council and considered its response. I applied the relevant law, statutory guidance and Council policy which included:-

• The Care Act 2014;
• Care and Support Statutory guidance;
• Sunderland Safeguarding policy;
• Court of Protection paperwork supplied by the Council;
• complaint correspondence between Mrs C and the Council.

11. Mrs C and the Council have had an opportunity to comment on my draft decision. I have considered their comments before reaching a final decision.

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What I found

Background information

12. Ms D has learning difficulties and lives in the community. Mrs C supports Ms D with her care, finances, and day to day living. Mrs C acted as Ms D’s appointee. This means she was responsible for dealing with Ms D’s government benefits which are provided through the Department for Work and Pensions (DWP).
13. Ms D uses money from the Council called a, “direct payment” to employ carers to support her. This is managed and administered through a third party organisation. In 2005 Mrs C says Ms D was caused harm because of the Council’s negligence. Mrs C says Ms D should not have to pay a contribution towards the cost of her care as those costs result from this negligence. In addition, Mrs C says the Council has not properly financially assessed Ms D and considered all the expenses associated with her disability.

What should have happened

14. 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)
15. The Care and Support Statutory guidance says,
16. “14.32 If anyone has concerns that a DWP appointee is acting incorrectly, they should contact the DWP immediately……”
17. The Council’s safeguarding policy says “the misuse or misappropriation of property, possessions or benefit” is financial or material abuse. It also says information “will be shared only for the purpose of providing care or for safeguarding the abused person or others”.
18. “14.180 Good record keeping is a vital component of professional practice. Whenever a complaint or allegation of abuse is made, all agencies should keep clear and accurate records and each agency should identify procedures for incorporating, on receipt of a complaint or allegation, all relevant records into a file to record all action taken.”
19. While the role of safeguarding is to protect vulnerable adults, it must also follow the principles of natural justice, when dealing with allegations against alleged perpetrators.
20. Councils can charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
21. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below the minimum income guarantee. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. This is known as Disability Related Expenditure (DRE). Care and Support (Charging and Assessment of Resources) Regulations 2014
22. A deputy is appointed by the Court of Protection to make decisions for someone who is unable to do so on their own. They are responsible for making these decisions until either the person they are looking after dies or can make decisions on their own again.

What happened

23. There is correspondence dating back to 2014 about Ms D’s assessment for care charges. There are records of different assessed charges and at one point the Council wrote off a debt, and awarded Mrs C £500 compensation for the stress caused by an invoice for a large amount.
24. Mrs C has provided evidence of her attempts during this time to engage with the Council to try and resolve matters around Ms D’s charges. She believes, and says, has previously been told by Council officers, that this should be nil. Mrs C says the Council has refused her requests for a meeting and that many of her letters have gone unanswered.
25. Mrs C says a social worker visited in 2016 and 2017. He raised no concerns and accepted that Ms D would not have to pay care charges because of the extent of her outgoings which Mrs C managed.
26. Mrs C has consistently disputed the care contribution Ms D needs to make towards her care costs. The Council says that it has written off over £30,000 of debt. Mrs C says this money was not written off as it was never due.

Safeguarding investigation

27. In 2018 a social worker made a safeguarding alert on the following basis:-
• Mrs C was not paying a contribution towards Ms D’s care;
• Mrs C had not opened a separate bank account for Ms D;
• Mrs C would not engage in a reassessment of Ms D’s finances to calculate her care costs;
• It was unclear if Ms D’s finances were being used for her sole use.
28. Prior to the alert the social worker records Mrs C saying she would not pay the contribution towards care costs as Ms D could not afford charges, and she did not agree with the amount. The social worker also records she warned Mrs C that if she did not pay Ms D’s contribution into the direct payment account, there would not be enough money to pay for Ms D’s carers.
29. The Council arranged a safeguarding meeting in January 2018. It invited Mrs C to the meeting three days before by a hand delivered letter. Mrs C could not attend the meeting due to the short notice. She asked the Council to postpone the meeting. The Council failed to respond to Mrs C’s request and recorded her as not attending within the safeguarding minutes.
30. The Council wrote to Mrs C a few days after the meeting with details of an action plan. The Council said it would:-
• make an urgent application to the Court of Protection to become Ms D’s deputy because of ongoing concerns about her management of Ms D’s property and finances;
• ask the DWP to make payments into a sole account for Ms D but managed by the Council;
• send Mrs C an invoice with the current arrears for Ms D’s care costs;
• tell the DWP about the Council’s concerns and ask it to decide who should take on the appointeeship.
31. Mrs C says the action plan failed to address how it would support Ms D to manage within the community. Mrs C continued to provide support in the management of staff, paying of bills and generally ensuring that Ms D was unaffected by the Council’s actions.
32. The Council held a second safeguarding meeting in March 2018 which Mrs C attended. The Council went through the issues of concern. It provided Mrs C with an opportunity to respond. Mrs C felt intimidated during the meeting and thought the Council had prejudged the outcome. Mrs C does not feel she was given an opportunity to respond.
33. During the meeting, the Council told Mrs C she could contact the Council for money if Ms D could not afford her outgoings. Mrs C says the Council failed to provide Ms D with any money which left her with insufficient funds to support herself.
34. The Council did not change its position in pursuing deputyship, and soon after it successfully applied to the Court of Protection to become Ms D’s deputy.
35. In February 2019 after liaison with the court Mrs C became the deputy. The court order was based on several conditions which included:-
1. Mrs C would adhere to a budget;
2. Mrs C would start payments of Ms D’s client contribution notwithstanding any appeal of that contribution.
36. The order allows the Council to go back to court if Mrs C does not adhere to the conditions. Mrs C says it also allows her to go back to the court, however this is not written within the court order as a specific action.

Was there fault causing injustice?

37. Mrs C says there was insufficient evidence for the Council to start safeguarding procedures. She says this is supported by the actions of both the DWP and private pension provider who both reinstated benefits in April 2018. She says Ms D’s advocate also spoke to both these bodies advising them Ms D was not at risk.
38. I do not find fault in the Council starting safeguarding procedures. There was enough information for the Council to consider Ms D was at risk from financial abuse and to make enquiries as stated in the Care Act 2014. The Council gave Mrs C an opportunity to engage with it and act which would have avoided the need to start the safeguarding process. Mrs C could have for example produced bank statements to show Ms D had a separate bank account and to evidence how she was spending her money.
39. While I understand Mrs C thought she was acting in Ms D’s best interests the Council was entitled to take the action it did to safeguard Ms D. The advocate was present at the second safeguarding meeting and his views considered. While both the DWP and the private pension provider may have later changed their view, I am unable to conclude the Council was at fault for starting safeguarding proceedings. Indeed the court of protection would not have initially awarded deputyship to the Council if there were insufficient grounds to do so.
40. The Council is at fault for failing to give Mrs C enough notice to attend the first safeguarding meeting. The risks associated with potential financial abuse of Ms D had been ongoing for several years and therefore I consider the short notice for Mrs C’s attendance at the meeting was unwarranted.
41. However, I do not consider this caused Mrs C significant injustice. This is because the Council had already warned her of the action it was intending to take if she did not carry out specific tasks. She was also provided with an opportunity to put forward her views at a following meeting. This did not change the Council’s actions or opinions, so it is unlikely her attendance at the earlier meeting would have changed the outcome. I would however suggest an addendum is added to the safeguarding minutes to accurately reflect that Mrs C could not attend the meeting. The Council should confirm the change by letter to Mrs C.
42. Mrs C says the Council treated her unfairly at the safeguarding meeting and the social worker was rude to her. I have considered the views of an independent advocate present who thought the social worker was professional. I have reviewed the safeguarding paperwork and do not consider the questions asked were inappropriate. While I appreciate Mrs C found the meeting difficult the Council has a duty to safeguard vulnerable adults and, in this case, ensure as far as possible Ms D was not subject to financial abuse. It was therefore entitled to ask probing questions. From the records provided Mrs C did not provide any new information which would have resulted in a different outcome.
43. I understand Mrs C feels she was not treated fairly under the principles of natural justice; however the Council has a duty to make enquiries where it thinks there may be financial abuse. The safeguarding process must be proportionate. While there appears to be no question by the advocate and Ms D’s carers that the standard of care provided to Ms D is excellent, they would not know details about Ms D’s finances.
44. Mrs C disputes the minutes of a later meeting and complains the Council inappropriately deleted a voice recording of the meeting. I find no fault in the actions of the Council. The Council does not have to keep a voice recording of safeguarding meetings and it does not appear to have told Mrs C this would happen. It has apologised to Mrs C for raising her expectations that this would be available.

Sharing information with other departments and individuals

45. The Council is not at fault for sharing information with the DWP. The Council had reason to believe Mrs C was not acting in Ms D’s financial interests and to avoid this from continuing was under an obligation to share this information with the DWP.
46. Mrs C says the Council also shared information with another pension provider. The Council says that it did not take this action. Without further evidence from Mrs C I cannot investigate this element of the complaint further.
47. Mrs C says the social worker shared information about the Council’s concerns with Ms D’s carers and a doctor’s receptionist. I have considered Mrs C’s comments on a draft of this decision. The social worker contacted the GP after she had concerns about Ms D’s medication. Mrs C considered the social worker’s actions were malicious. I am unable to say this was the case. The social worker had concerns about Ms D’s medication and contacted the GP to obtain information. I consider this was a legitimate action to take. I am aware Ms D missed an appointment because of the social worker failing to provide information to Mrs C and Ms D’s carers. This was fault. However I am unable to say Ms D was caused significant injustice by this oversight.

Failing to address concerns about the social worker

48. Mrs C says Ms D was afraid of the social worker. Mrs C asked for a different social worker for Ms D; the Council refused to allocate someone else. Mrs C says the Council only took safeguarding action against her because of this request and the social worker was acting vindictively.
49. The Council says it considered Mrs C’s views but did not agree with them. To address Mrs C’s fears the Council agreed to allocate a second social worker. The role of this social worker was to complete all the face to face contact with Ms D. The overall responsibility however, remained with the original social worker. Without an independent record I cannot say, on balance, how Ms D feels about the social worker. In the absence of finding fault however, the Council’s actions address Mrs C’s concerns.
50. As stated above the Council’s decision to start safeguarding procedures were legitimate. The actions taken by the Council were made by a number of officers not just the social worker. The social worker warned Mrs C about the Council’s proposed actions before Mrs C making a complaint about the social worker. I am therefore unable to say the social worker or Council were acting vindictively.

Financial hardship when the Council acted as Ms D’s deputy

What happened

51. Mrs C says Ms D did not have enough money when the Council acted as deputy and did not have the basic level of finance recommended by the government. Mrs C says the Council restricted Ms D’s money by £1453 and she could not pay her bills. Mrs C says she had to supplement Ms D’s money by £851.
52. The safeguarding minutes record officers advising Mrs C to contact the Council if Ms D needed any extra money. It also records that the Council offered Mrs C a suspense account on at least two occasions, the latter on 9 March 2018 at a safeguarding meeting. The Council says that Mrs C refused this account. The Council also provided a schedule of money it paid Ms D while acting as deputy.
53. Until the Council got appointeeship it did not calculate a set weekly amount of money for Ms D. Instead it relied on Mrs C to say when Ms D needed money. The Council says it made payments before it received money from the DWP. It also says that during the initial period many of Ms D’s other payments were still in Mrs C’s control.
54. There are several delays between the time in which the Council obtained pension/benefits for Ms D and when they were paid. On at least one occasion Mrs C had to ask the Council for money.

Was there fault causing injustice

55. It does not appear that Ms D was caused significant injustice by the Council’s actions as Mrs C still managed and paid for her daily living expenses. The Council told Mrs C she could ask for additional funds if needed and from the schedule it appears the Council made payments to Ms D following requests from Mrs C. It was therefore up to Mrs C to contact the Council if Ms D needed further funds.
56. While it would have been helpful for the Council to have at the onset compiled a plan of how to manage Ms D’s finances given the differences between the Council and Mrs C this would have been difficult.
57. Mrs C says the Council owes Ms D money from its deputyship period. I do not intend to look at this further. This is because the amount owed is dependent on the Council’s assessment of Ms D’s care contribution. This, as yet, has not been fully determined. As far as I am aware the Council has yet to decide Ms D’s contribution. Until it does it is difficult to say what, if any, is owed to Ms D. However I would suggest the Council considers this after it has reached a decision on Ms D’s charge.

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Final decision

58. I have found no fault in the Council’s actions that have caused Ms D or Mrs C significant injustice. I have now completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

59. I have not investigated matters from 2005 as they occurred too long ago. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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Investigator's decision on behalf of the Ombudsman