• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• What happened
• Final decision

The Ombudsman's final decision:

Summary: Ms Y complained the Council failed to include her in a safeguarding investigation and failed to provide records on request. The Council was at fault for not responding to Ms Y’s request for safeguarding information, however, it provided this following a subject access request so the injustice to Ms Y was not significant. The Council was not at fault for the way it carried out the safeguarding investigation and in its attempts to involve Ms Y in the investigation.

The complaint

1. Ms Y complained the Council failed to include her and her mother in a safeguarding investigation and failed to provide the records of the safeguarding investigation on request.
2. Ms Y said the Council stopped her deciding who she wanted as her personal assistant, causing her upset and frustration.

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The Ombudsman’s role and powers

1. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
2. 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)
3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about a subject access request. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. 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

1. I considered evidence provided by Ms Y, her representative and the Council when making my draft decision. Ms Y 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

Background

1. Under section 42 of the Care Act 2014, councils have a duty to make safeguarding enquiries if they reasonably suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves.
2. In a safeguarding enquiry, councils should aim to establish facts, find out the individual’s views, assess the adult’s need for protection, support, and redress, and decide what action should be taken. The main purpose of a safeguarding enquiry is to decide whether the council should act to help and protect the adult.
3. As part of a safeguarding enquiry, councils must gather relevant information from the person who raised the safeguarding alert, the vulnerable person in question (if appropriate), professionals involved in their care, and family members. Councils should share information and liaise with those involved when making decisions and manage any potential risk. Councils must also keep accurate records of safeguarding enquiries and outcomes.
4. The Care and Support Statutory Guidance sets out what a safeguarding enquiry should look like. It says an enquiry could range from a conversation with the adult or their representative before starting a formal enquiry under section 42, through to a much more formal multi-agency plan or course of action. The guidance says it is for the council to determine the appropriateness of the outcome of the enquiry.
5. The statutory guidance also says councils have a duty, where necessary, to arrange for an independent advocate to support and represent an adult who is the subject of a safeguarding enquiry or safeguarding adult review. This is to enable people who have substantial difficulty in being involved in such processes to be supported and as fully involved as possible.
6. The statutory guidance says where a person has substantial difficulty in any of the following four areas, they should be considered as in need of assistance:
   • Understanding the information provided;
   • retaining the information
   • using or weighing up the information as part of the process of being involved;
   • communicating the person’s views, wishes or feelings.
7. The guidance sets out the role of advocates in the safeguarding process. This includes, but is not limited to, helping a person to:
   • decide what outcomes/changes they want;
   • understand the behaviour of others that are abusive /neglectful;
   • understand which actions of their own may expose them to avoidable abuse or neglect;
   • understand what actions that they can take to safeguard themselves; and
   • understand what advice and help they can expect from others.

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What happened

1. Ms Y is blind and physically disabled. Following a needs assessment, the Council agreed a care and support plan in March 2019. The care plan said Ms Y needed six hours of support each day to support her with personal care, household tasks, correspondence, food and drink and exercise.
2. The Council agreed to Ms Y employing two personal assistants (Mr B and Ms C), paid for through direct payments. The direct payment agreement said the Council’s responsibilities included ensuring Ms Y was managing the support and meeting the outcomes agreed in the care plan. The agreement also said the Council could “stop of suspend the DP [direct payments], if it is not used on support/services to meet the agreed outcomes”.
3. In May, an incident occurred at Ms Y’s property involving Ms Y, Ms C and Mr B. An argument ensued and the police removed Mr B from the property. The police made a safeguarding referral to the Council.
4. In response, the Council visited Ms Y at home. The Council’s records show Mr B was present, giving Ms Y support in answering the Council’s questions. Mr B, on Ms Y’s behalf, gave the Council a different version of events from that detailed in the police report. Ms Y confirmed she had been left without care but said this was the fault of Ms C, not Mr B. The records said Council officers had been unable to speak to Ms Y alone in person or in telephone calls, to seek her version of events.
5. An advocate, acting on Ms Y’s behalf, contacted the Council the next day. The advocate said Ms Y wanted to keep Mr B as her carer and repeated Ms Y’s version of events. The Council recorded these wishes in its case notes. The case notes also show the social worker gave minimal details included in the police report to the advocate, including the time of the incident and the involvement of alcohol. The advocate asked whether a capacity assessment was required and the social worker confirmed that Ms Y had capacity and her view would be considered in the investigation.
6. The Council decided at a strategy meeting that the incident met the threshold for a full safeguarding investigation. Following a safeguarding investigation, the Council decided it would be appropriate for Ms Y to seek an alternative carer, other than Mr B, to ensure her care needs were met fully and she was not neglected.
7. The Council met with Ms Y, Mr B and an advocate in June 2019 to explain the outcome of the investigation. Ms Y’s mother attended by telephone. Ms Y disputed the contents of the police report and said Mr B had been attacked and the police had attended to protect him. The Council told Ms Y she could no longer employ Mr B to support her.
8. The case notes say this was discussed at the meeting and the advocate asked for a copy of the safeguarding policy and the safeguarding investigation report. The Council officers said the guidelines could be found online. The Council reiterated Mr B could no longer act as a paid personal assistant through direct payments. The records also show the advocate asked the Council to explain its reasons for this decision. The notes show the social worker told the advocate that as Ms Y had capacity, it would be up to Ms Y to disclose the details of the issues raised, but the safeguarding threshold was met and a risk was identified. The case notes state the advocate emailed the Council the following day to ask for a copy of the safeguarding records.
9. Ms Y complained to the Council nearly two weeks after the meeting. Ms Y’s advocate has told us Ms Y was unable to understand the decision made causing her distress and upset. The advocate has also said they would have been in a better position to support Ms Y had they been given access to information, such as the police report, before the outcome meeting was held.
10. The day after making her complaint, Ms Y also made a written Subject Access Request (SAR). The Council acknowledged the complaint before giving its response in July 2019.
11. The Council’s response said the June meeting had been difficult as Ms Y, Mr B and the advocate had clearly disagreed with the result of the investigation. It agreed the advocate had repeatedly asked for a copy of the safeguarding policy but said the Council officer had not brought a copy of this to the meeting.
12. In the response the Council said it had no record of a request for the safeguarding records. It acknowledged a SAR Ms Y had made following her complaint and said it would contact her further about this. It also said it had a duty ‘to ensure that any actions identified, further to a safeguarding investigation were implemented. In this case the actions identified were to engage a new P.A [personal assistant].’
13. Ms Y has since employed two new personal assistants to support her.

Findings

Involvement in the safeguarding investigation

1. Following a police safeguarding referral, the Council visited Ms Y. It was under a duty to make these enquiries, regardless of whether Ms Y disagreed with the contents of the police report or the concerns raised in the safeguarding referral. It was not at fault.
2. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. Instead the Ombudsman must consider if there was fault in the way the Council made its decision.
3. During its safeguarding enquiries, the Council visited Ms Y to seek her views. It is good practice, and part of statutory guidance to consider involving an advocate as soon as possible where a person may have substantial difficulty in being a part of the safeguarding process. The notes record the Council was satisfied Ms Y had capacity and was able to express her views. In any case, an advocate acting on Ms Y’s behalf contacted the Council the day after the visit and attended the June meeting. Before making its decision, that Mr B could no longer be a paid carer for Ms Y, the Council did seek Ms Y’s views. These views were then repeated, unchanged, through Ms Y’s advocate. Ms Y therefore had an advocate and there was no significant injustice.  
4. The Council decided Ms Y should employ a new personal assistant. The Council made its decision based on the information available. This included the police report, which resulted in the safeguarding referral and Ms Y’s explanation, given with Mr B’s help. The Council considered its difficulties in speaking to Ms Y, even on the telephone, without Mr B being present. It also considered the conflicting versions of events, from the police taken at the time, and the later version of events provided through Mr B and Ms Y’s advocate.
5. While Ms Y disagreed with the decision, there was no evidence of fault in the Council’s decision-making process as it considered all the information available. There was no fault in the Council’s decision-making process and so we cannot question the decision itself. We cannot question the merits of the Council’s decision simply because Ms Y feels it is unfair.

Providing information considered during the safeguarding investigation

1. Ms Y’s advocate says the lack of information provided at the outcome meeting with Ms Y and Mr B caused unnecessary distress and upset as Ms Y was unable to understand the decision. The advocate also felt unable to fully support Ms Y as they were not made fully aware of the police report’s content.
2. While a fuller disclosure may have been helpful to the advocate, the Council was not at fault in not sharing details of the police report with Ms Y’s advocate. As the Council decided Ms Y had capacity, it was up to her to choose what information she wanted to share. As Ms Y had chosen not to share details given to police, the Council was not at fault for not sharing the information with the advocate.
3. The Council gave proper consideration, taking account of Ms Y’s mental capacity, to the information it decided to share with the advocate. As such, there is no evidence of fault in the Council’s action.

Providing safeguarding records on request

1. The Council’s complaint response said it had no record of a request for the safeguarding records. However, the records provided to us show the advocate requested the records during the June meeting. Ms Y’s advocate then emailed the following day to repeat the request. While the Council recorded this request, it was not responded to, which was fault.
2. Ms Y then made a SAR, which the Council responded to, providing her with information from the Council’s records within two weeks. Consequently, Ms Y’s injustice was limited and was not significant as she later received the information. As the injustice was not significant a remedy is not needed to correct the injustice caused. If Ms Y is unhappy with the Council’s response to her SAR, she should consider contacting the Information Commissioner.
3. The advocate also requested a copy of the safeguarding policy. I have not found fault in the Council’s officer not having a hard copy of this with her during the home visit and consider the referral to the Council’s policy online to be sufficient.

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Final decision

1. I have completed my investigation to find the Council was at fault for not responding to Ms Y’s request for safeguarding information, however the injustice was not significant enough to need a remedy. The Council was not at fault in its attempts to involve Ms Y in its safeguarding investigation.

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Investigator's decision on behalf of the Ombudsman

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