Summary: Mrs F complains on behalf of her sister about the way the Council dealt with an adult safeguarding enquiry. The Ombudsman has not found fault.

The complaint

1. Through her solicitor, Mrs F complains on behalf of her adult disabled sister, Ms J, that:
1. the processes followed by the Council when conducting a safeguarding enquiry in June 2017 were flawed;
2. the Council failed to provide adequate interim support to Ms J during the safeguarding enquiry; and
3. the Council failed to communicate adequately with her legal representatives.
2. Mrs F says this caused distress and anxiety to Ms J.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Mrs F complained to the Ombudsman in September 2019 about events of 2017, but I have exercised my discretion to investigate. This is because the delay in complaining to the Council was not caused by Ms J and the Council still had key documents to enable a meaningful investigation to take place.
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)

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How I considered this complaint

7. I spoke to Mrs F’s solicitor about the complaint and considered the information she sent, the Council’s response to our enquiries and:
• The Care Act 2014
• The Care and Support Statutory Guidance (“the Guidance”)
• Procedures for the protection of adults with care and support needs in the West Midlands (“the Procedures”)
• The Law Society’s practice note Meeting the needs of vulnerable clients
8. I sent Mrs F and the Council my draft decision and considered the comments I received.

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What I found

Safeguarding adults

9. The law says councils must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and if that person has needs for care and support which mean he or she cannot protect himself or herself. The enquiries should determine whether any action needs to be taken to prevent or stop abuse or neglect. (section 42, Care Act 2014)
10. Immediate actions may be required to safeguard the adult if it is considered they are at immediate risk of harm. If the adult does not have capacity to understand the risks, the appropriate decision maker must make a decision in their best interests.
11. The scope of the enquiry, who leads it and its nature, and how long it takes, will depend on the circumstances. The Council’s policy is to complete the enquiries within 28 days. The council should put in place an interim safeguarding plan whilst the enquiry is ongoing to ensure the support and safety needs of the adult.
12. The Guidance says where an adult has “substantial difficulty’” being involved in the safeguarding enquiry, the council must decide whether there is an appropriate person to represent them. If there is none, the council must arrange for an independent advocate to be provided.

Best interest decisions

13. 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. It says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone's ability to make a decision when that person's capacity is in doubt.
14. If someone lacks capacity a “decision maker” must decide on their behalf. A key principle is that any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person's best interests. The Act sets out the steps that decision makers must follow to determine what is in a person’s best interests. This includes taking into account, if it is practicable and appropriate, the views of anyone named by the person as someone to be consulted, or anyone engaged in caring for the person or interested in their welfare.

Deprivation of liberty safeguards

15. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The code of practice sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty.

What happened

Safeguarding concerns

16. Ms J has a learning disability, autism, is non-verbal and has limited capacity to make decisions for herself. The Council provided Ms J with a care package which included support from a personal assistant and attendance at a day centre.
17. In May 2017 the Council received a safeguarding referral from staff at the day centre raising allegations of abuse by her parents, Mr and Mrs D, with whom she lived. The Council decided to carry out a safeguarding enquiry and to arrange for an independent advocate to be appointed. It decided not to discuss the matter with Mr and Mrs D until Ms J’s views had been obtained.
18. When the social worker visited the day centre, the staff disclosed another previous safeguarding incident and a safeguarding alert about that was made on 9 June 2017. On 14 June 2017 the day centre made a further safeguarding referral about a third earlier incident. The Council told Mr and Mrs D about the three allegations and contacted the police. The police told Mr and Mrs D that evening that Ms J would be removed from their care following an interview under caution the next day.
19. The social worker and the independent advocate visited Ms J at the day centre on 15 June 2017. They intended to carry out a mental capacity assessment, but this could not be completed as Ms J was agitated. The officers were concerned that there may have been other previous safeguarding incidents which the day centre had not reported. They decided it was in Ms J’s best interest to put an interim safeguarding plan in place to remove her from the care of her parents whilst the police carried out their enquiries. The Council arranged for Ms J to stay in a supported living placement and she went there after her visit to the day centre.
20. The case records show Mrs F contacted the Council on 15 June 2017. She was very concerned that Ms J had been taken somewhere without her permission and she did not know where Ms J was. She asked if Ms J could stay with her. The Council agreed and Mrs F collected Ms J that evening. In response to my draft decision, Mrs F said the supported living placement was not suitable for Ms J as the residents had a mix of needs. It was subsequently agreed that Mrs F was an appropriate person to represent Ms J’s views and the independent advocate was no longer needed.

Ms J’s interim care and support package

21. As Mrs F worked, the Council put in place a temporary package of care which started on 20 June 2017. This was to increase the number of hours of support from the personal assistant to nine hours per day, as Ms J was not able to attend a day centre.
22. Mrs F did not live close to Ms J’s home so she asked how Ms J’s travel and community activities would be funded. The Council said Ms J’s disability living allowance benefit was intended to fund travel and Ms J should pay for her own community activities.
23. Mrs F’s solicitor contacted the Council, but the Council would not disclose any information to her about Ms J. It said Mrs F had no authority to instruct the solicitor on Ms J’s behalf, as she had not been appointed by a court to act as Ms J’s litigation friend. In addition, the Council considered there was a potential for a conflict of interest in Mrs F carrying out that role, as she was the daughter of the subjects of the safeguarding enquiry.

The safeguarding enquiry

24. Following the referrals, the Council determined a safeguarding enquiry was necessary. The police agreed to lead the investigation. The police had told the Council they could not progress their investigation until Ms J’s capacity had been assessed, including advice from a speech and language therapist (SALT). The social worker attempted a capacity assessment on 14 June 2017 and made a referral to the NHS SALT service on 21 June 2017.
25. The SALT service allocated a therapist on 9 July 2017 and there was a joint visit to Ms J on 19 July 2017. This determined Ms J did not have the capacity to understand risk or where she should live. The police were informed and decided to take no further action.
26. The Council visited Mrs F on 24 July 2017. It was agreed that it was in Ms J’s best interest for her to return home. The Council also spoke to Mr and Mrs D and agreed a protection plan would be put in place, which included:
1. Carers assessments for Mr and Mrs D
2. Ms J being supported by the personal assistant four days a week instead of attending a day centre
3. A referral to the community learning disability nurse to support the family and carer with strategies to manage Ms J’s behaviours
4. The Council applying for a community DoLS authorisation, as Ms J was under supervision and control and not able to be in the community alone due to risk
5. The family and carer to have refresher training in relation to understanding Autism

Mrs F’s complaint

27. Mrs F asked her solicitor to complain to the Council in August 2017. The solicitor submitted a formal complaint in May 2018. The Council responded in August 2018 to Mrs F’s complaint about the safeguarding investigation. It did not uphold Mrs F’s complaint, although it accepted there had been a delay of two weeks in an advocate being allocated to Ms J and that the Council could have considered using Ms J’s personal assistant as her representative. The Council said Mrs F’s details were not recorded in Ms J’s assessments, so the social worker could not have contacted Mrs F. It said it had not been responsible for the delay in a SALT being allocated.
28. In October 2018 the Council replied to Mrs F’s complaint that it had refused to deal with the solicitor. It did not uphold the complaint. The Council said it had engaged appropriately and professionally with the solicitor.
29. Mrs F was not satisfied with the responses and instructed her solicitor to ask the Council to escalate the complaint to the next stage. Mrs F says there was then a delay because the case had to be transferred to another solicitor. The new solicitor asked for a review in April 2019. The Council responded in June 2019, and again in August 2019, confirming its decision that it would not carry out a review because of the length of time that had elapsed since the complaint was made. The Council explained that Mrs F should have asked for a review within 10 days of receiving the complaint response in August 2018. Mrs F complained to the Ombudsman in September 2019.

My findings

The processes followed by the Council when conducting a safeguarding enquiry in June 2017 were flawed

30. There was no fault by the Council when it decided to start a safeguarding enquiry following the receipt of the three safeguarding referrals. It was required to do so by law as it had "reasonable cause to suspect" that a vulnerable adult had suffered, or was at risk of, harm. This duty to investigate applies to all allegations, whether proven or not.
31. At the end of the enquiries councils must decide if the concerns are substantiated, partially substantiated or not substantiated. The Ombudsman 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. I have therefore considered how the Council carried out its enquiries.
32. The safeguarding enquiry report says the Council spoke to Mr and Mrs D, and the day centre staff. It informed the police of the allegations on 13 June 2017 who decided to investigate. This is in line with the Guidance and the Procedures.
33. The police could not progress their investigation until Ms J’s capacity had been assessed, for which a SALT was needed. Mrs F says she had to chase the social worker to progress the matter. It was unfortunate that a SALT was not allocated until 9 July 2017, but this delay was not caused by fault by the Council and I have seen no evidence of avoidable drift or delay by the Council in the case records.
34. Mrs F disagrees with the Council's decision to remove Ms J from her parents’ care whilst the police investigation was ongoing. She says this was not in her best interests and was against her wishes. Mrs F complains the Council failed to consider the impact on Ms J of being removed from her home. In response to my draft decision, Mrs F’s solicitor said the Council had not upheld the principles of empowerment, proportionality and transparency.
35. The Ombudsman's role is not to decide what was in Ms J's best interests. My role is to consider whether there was administrative fault in the way the Council made its decision.
36. The decision was taken by the social worker and the advocate because they were concerned other safeguarding incidents may have occurred but not been reported by the day centre. They therefore had concerns that Ms J may be at risk of harm. Although Mrs F was not consulted, she was not required to be. The Council appointed and involved an independent advocate, which is in line with the Guidance and Procedures.
37. The Council was required to decide what was in Ms J’s best interest given it had concerns she was at risk of harm. I realise Mrs F disagreed with its decision to not allow Ms J to return home, but this was a decision it was entitled to take and I have found no fault in the way it was made or in the way the safeguarding enquiry was conducted. I therefore cannot question it.

The Council failed to provide adequate interim support to Ms J during the safeguarding enquiry

38. Mrs F says the temporary placement was unsuitable for Ms J, but I have seen no evidence of fault in the way the Council decided it was suitable.
39. The Council arranged for care and support to be put in place whilst Ms J was living with Mrs F, including to cover the additional cost of respite whilst Mrs F was on holiday. Whilst I appreciate this was a difficult situation, there is no evidence of fault by the Council.

The Council failed to communicate adequately with her legal representatives

40. When the solicitor contacted the Council she said she was acting on behalf of Ms J after being instructed by Mrs F. The Law Society’s guidance says:

“No one, whether a family member or professional, has the right to give instructions [to a solicitor] or make decisions about another person's property, financial or legal affairs unless they have been given formal authority to do so either by the client or by a court (for example an attorney acting under and EPA or LPA, a litigation friend or deputy).” (section 5.2)

41. Mrs F was not Ms J’s attorney, deputy or litigation friend. It was therefore not fault for the Council to say it could not provide details of her case to Mrs F’s solicitor.

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Final decision

42. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman