Dudley Metropolitan Borough Council (19 008 138)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 12 Nov 2020

The Ombudsman's final decision:

Summary: Mr B complains on behalf of his mother, Mrs C, that the Council did not properly deal with a safeguarding concern about Mrs C because it entered her home without permission. The Council is at fault because it did not properly complete a safeguarding concern document, did not consider professional guidance, did not fully consider Mrs C’s wishes and entered her property without any legal basis to do so. Mrs C suffered distress. The Council has agreed to apologise to Mrs C, pay Mrs C £100 for her distress and issue advice to staff.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complains on behalf of Mrs C that the Council did not properly deal with a safeguarding concern about Mrs C, because it wrongly entered her home to speak with her, shared the code for her keysafe and did not deal with his complaint about this properly. Mr B also complains the Council did not investigate his complaint properly. Mr B says Mrs C suffered distress as a result.

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What I have investigated

  1. I have investigated that part of Mr B’s complaint about the Council entering his mother’s home that are in jurisdiction as well as how it dealt with his complaint. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. However, we can consider whether a Council has had due regard to human rights when making their administrative decisions.
  5. 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

  1. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman, including professional guidance, audio recordings and CCTV. I have also considered the Council’s response to his complaint and its responses to my enquiries.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. The Care Act 2014 says Councils have a duty to promote an individual’s well-being. The Act defines well-being and says Council’s must have regard to the individual’s views, wishes feelings and beliefs as well as the need to protect people from abuse and neglect. (s1 Care Act 2014).
  2. 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. (s 42 Care Act 2014).
  3. The Council’s safeguarding policy says the purpose of the Multi-Agency Safeguarding Hub (MASH) process is to gather information to determine whether there is a need for a safeguarding enquiry under section 42. The social worker’s line manager has responsibility for deciding whether a referral to the police should be made or further information needs to be gathered.
  4. The Care and Support Statutory Guidance says (14.8) “Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual well-being, as defined in Section 1 of the Care Act.”
  5. The Care and Support Statutory Guidance says (14.40) “The circumstances surrounding any actual or suspected case of abuse or neglect will inform the response”.
  6. The Care and Support Statutory Guidance says (14.76) “Local authorities must make enquiries, or cause others to do so, if they reasonably suspect an adult … is at risk of, being abused or neglected”
  7. The Social Care Institute for Excellence (SCIE) is an independent organisation established in 2001, as part of the Government's strategy to improve social care provision and practice. It has published guidance titled, “Gaining access to an adult suspected to be at risk of neglect or abuse.” The guide summarises types of legal powers that may be relied on to gain access to an adult suspected to be at risk of neglect or abuse, but access is being denied or restricted. This includes:
    • Orders under s16(2) of the Mental Capacity Act in relation to adults lacking capacity.
    • inherent jurisdiction of the High Court to make an order in any circumstances not governed by specific legislation or rules.
    • S115 and s135(1) of the Mental Health Act in relation to people with mental disorders.
    • Powers available to the Police under the Police and Criminal Evidence Act.
  8. The Human Rights Act 1998 (the HRA) incorporated provisions of the European Convention on Human Rights into UK law. It sets out the basic rights of every person together with the limitations placed on these rights. Article 8 of the HRA provides a right to respect for one’s private and family life, home and correspondence. It is a qualified right. This means a public authority may be justified in interfering with an individual’s particular right in order to protect the rights of others or a wider public interest.

What happened

  1. Mrs C lived at home and received care visits. Social workers from the Council visited Mrs C at home in relation to safeguarding concerns.
  2. Mr B complained about the Council having entered Mrs C’s house, saying it was unauthorised, the social workers committed an offence, the code to the keysafe should not have been shared, there was an agreed protocol about contacting Mrs C alone that was not followed, the safeguarding enquiry was not proportional, Mrs C had told the Council she did not feel at risk from Mr B and the Council had repeatedly used its safeguarding functions to undertake reprisals. The Council responded to Mr B and did not uphold his complaint.

Analysis

  1. In February 2019, while looking into safeguarding concerns, Manager A from the Council discussed with Mr B and Mrs C how it would make contact in the future with Mrs C. The Council agreed that if it felt it needed to talk to Mrs C alone, it would make initial arrangements through Mr B. It is clear from audio recordings provided by Mr B that Mrs C did not wish to speak to social workers at that time and that if she had concerns she would tell someone.
  2. Case notes show:
    • In May 2019 the Council received statements from Mrs C’s carers about Mr B;
    • The Council referred the matter to the MASH;
    • the Council considered a previous allegation of coercion, that Mrs C said she was happy with Mr B and did not want any action taken and the possibility of increased risk to Mrs C in the form of reduced care provision;
    • Manager A noted Mrs C’s wishes and said the Council would need to consider them further following a strategy meeting;
    • The Council considered a number of options to enable it to discuss the matter with Mrs C alone without speaking to Mr B first; and
    • In June 2019 the Council visited Mrs C at home to make enquiries, in order to inform a decision as to whether it should make s42 enquiries.
  3. Internal emails provided by the Council show:
    • the Council decided to make initial enquiries with carers and then visit Mrs C;
    • it considered that Mrs C would not be able to get to the door;
    • It did not immediately close the safeguarding case because there was a police led enquiry outstanding; and
    • it considered whether it was appropriate to share the code to the keysafe with the Police for the purposes of their investigation.
  4. CCTV shows the Council visited Mrs C at home alone and gained entry using the key-safe outside her house, for which it already held the access code. The Council did not ring the doorbell or knock on the door first. The Council did not force entry.
  5. Mrs C’s carers wrote a care log for the day they reported safeguarding concerns. Mr B says this evidence is “diametrically opposed” to the carers’ statements. The care log contains no information about safeguarding concerns. The two statements outline clear safeguarding concerns.

Initial safeguarding response

  1. The Council referred safeguarding concerns to the MASH. I have seen information provided to the MASH, some of which has not been disclosed to Mr B, on which the Council based its decision.
  2. The visit made by the Council to see Mrs C was to gather further information to inform its decision about whether the threshold was met for section 42 enquiries. Mr B says the Council should have made contact by the agreed procedure. The later outcome of the section 42 threshold decision is not evidence that the Council should not have looked into the safeguarding concerns. The decision as to whether to make a referral or gather further information is a professional merits decision.
  3. The Council followed its safeguarding policy when it dealt with the safeguarding concerns prior to visiting Mrs C. This is not fault by the Council.

The decision about how to visit Mrs C

  1. The Council says it did not act in accordance with the agreement it made in February because the safeguarding concerns in May differed in nature from those in February and involved Mr B. In its response to my enquiries, the Council said it decided it needed to speak to Mrs C alone to ensure no influence or duress could take place. The Council says it considered contact with Mr B prior to the visit but this was rejected due to the potential for increased risk from him to Mrs C as well as the potential for coercion or duress.
  2. Case notes show the Council considered alternative ways it could facilitate speaking to Mrs C alone. This supports the Council’s statement that it considered contact with Mr B before visiting Mrs C and rejected this course of action. On the balance of probabilities, the Council considered whether to contact Mr B before visiting Mrs C.
  3. Mr B says the Council should have considered the SCIE guidance and sought legal powers to enter Mrs C’s home. The SCIE guidance states, “The duty to make or to cause adult safeguarding enquiries to be made does not provide for an express legal power of entry or right of unimpeded access to the adult who is subject to such an enquiry.” The Guidance continues, “Whether it is necessary to seek legal intervention and which powers would be the most appropriate to rely on in order to gain access to an adult to assess any safeguarding risk, or otherwise protect an adult, will always depend on the individual circumstances of the case.”
  4. The Council noted Mrs C’s previously expressed wishes in the case notes and said it would need to consider them further after the strategy meeting. I have not seen evidence to show the Council considered Mrs C’s wishes further.
  5. After visiting Mrs C, the Council recorded in the case notes that it had obtained Mrs C’s consent. The case notes show that Mrs C was unhappy and said she wanted Mr B to be present. The Council accepts that this was a recording error and has agreed to correct it.
  6. The Council says there was already agreed access for Council home care workers to enter using the keysafe. This did not extend to visits by other Council staff for other reasons.
  7. The Council says it acted in accordance with the SCIE guidance because it entered to attempt to negotiate Mrs C’s consent to speak to her about the safeguarding concern. It says,”To have approached the court in this circumstance without first attempting the negotiation as required by SCIE guidance would have been disproportionate and it is reasonable to expect that the court would have required us to attempt to negotiate access first which is what we did.”
  8. There is no evidence to show the Council considered the SCIE guidance or alternative legal powers before making the decision to enter Mrs C’s home.
  9. The SCIE guidance says,” All attempts to resolve the situation should begin with negotiation, persuasion and the building of trust [before consideration of the use of legal powers].” It is clear this refers to negotiation before gaining access and not afterwards. The Council had already entered Mrs C’s house without consent before it spoke to her to ‘negotiate’.
  10. The Council cannot show it properly documented the rationale for its actions. On the balance of probabilities, the Council did not consider the SCIE guidance or fully consider Mrs C’s wishes as it said it would do. The Council therefore did not act in accordance with the Care Act, Statutory Guidance and its safeguarding policy.
  11. The Council did not act in accordance with the SCIE guidance and entered Mrs C’s home without any legal basis. This is fault by the Council. Mrs C’s privacy was breached and she suffered distress.
  12. Mr B says the Council breached Article 8 of the European Convention on Human Rights. In taking the action the Council did, it appears to have had no regard for its responsibilities and considerations under Article 8.

Case closure

  1. The safeguarding concern form contains a section to record the decision about whether the threshold for s42 enquiries has been met. This section was not completed in the copy of this document provided by the Council. This is fault by the Council. The case notes show the police investigated the concerns separately and the MASH agreed that a strategy meeting should be held. Mrs C did not suffer any ongoing significant injustice as a result because, on the balance of probabilities it is likely the outcome would have been the same.
  2. Mr B says the Council should have closed its safeguarding case sooner. Email evidence shows the Council agreed it would take no further action but could not be closed as there was a police led enquiry outstanding. The case notes show the Council asked the police what they intended to do. As soon as the police confirmed they intended to take no further action the Council immediately closed the safeguarding case. This is not by the Council.

Complaint handling

  1. Mr B complained to the Council in June on the day the Council visited Mrs C. The Council responded to Mr B in early July. The Council did not identify any fault regarding Mr B’s complaint. The Council’s response to Mr B was within the 20 working days timescale in its complaint procedure and replied to all the points in Mr B’s complaint. This is not fault by the Council.
  2. Mr B says it was wrong for Manager A in the Council to have investigated his complaint. Mr B’s complaint did not mention Manager A. The Council’s complaint response was from a different senior manager. The Council’s senior manager responded to Mr B after he complained about Manager A’s involvement. This is not fault by the Council.

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Agreed Action

  1. To remedy the injustice caused by the fault I have identified the Council has agreed to take the following action within 4 weeks of my final decision:
    1. Apologise to Mrs C;
    2. Pay Mrs C £100 for distress; and
    3. Provide advice to all relevant staff to ensure:
      1. individual wishes and relevant SCIE guidance are considered when making decisions about how s42 enquiries should be carried out; and
      2. decisions and the rationale for them are recorded at all points in the safeguarding process.

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Final decision

  1. I have found fault by the Council causing injustice to Mrs C. I have now completed my investigation.

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Parts of the complaint I have not investigated

  1. I have not investigated further that part of Mr B’s complaint concerning the sharing of the code to Mrs C’s keysafe. This is a matter better considered by the Information Commissioner and I have not seen a good reason for me to exercise discretion to investigate this.

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Investigator's decision on behalf of the Ombudsman

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