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

The Ombudsman's final decision:

Summary: The Council failed to respond properly to Mrs X’s complaints about the way a social worker conducted a safeguarding investigation. It failed to follow its safeguarding procedure or the Mental Capacity Act. It has apologised and partially upheld her complaint but agrees to recognise the considerable distress caused by a consolatory payment. It will also review its processes for signing off safeguarding investigations.

The complaint

1. Mrs X (as I shall call the complainant) says the Council did not properly respond when she complained about the way a social worker investigated her safeguarding concerns about her late mother, Mrs B. She says the social worker not only committed a data breach but also caused her considerable distress with unfounded allegations.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mrs X and by the Council. We spoke to Mrs X. Both Mrs X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

5. 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)
6. The Council’s multi-agency safeguarding policy says, “The individual support needs of the adult should be considered and provided to enable them to contribute their views and wishes. This will include but is not limited to support with communication needs. Where a person needs support or representation this will often be provided by a friend or relative”.
7. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision.
8. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests. The term ‘best interests’ is not defined in the Act, however it does set out a checklist of common factors that must always be considered:

• the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
• the beliefs and values that would be likely to influence his decision if he had capacity; and
• the other factors that he would be likely to consider if he were able to do so.

9. Councils must take into account, if it is practicable and appropriate to consult them, the views of:

• anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
• anyone engaged in caring for the person or interested in his welfare;
• any donee of a lasting power of attorney granted by the person; and
• any deputy appointed for the person by the court
• as to what would be in the person's best interests.

10. There is a requirement to apply the Mental Capacity Act 2005 in adult safeguarding enquiries.
11. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 refer to the requirement for complaints investigations to be handled:

• With efficiency
• To be properly investigated
• To have a timely and appropriate response
• For the complainant to be told the outcome and action taken.

12. 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)

What happened

13. Mrs B was an elderly lady who had dementia. She was resident in a care home where her care was fully NHS funded.
14. The Council’s records include a safeguarding alert from the Speech and Language Therapist (SLT) from February 2018. The SLT had recommended Mrs B was given a pre-mashed diet. He also recommended Mrs B’s wet pad was changed before eating but said care staff had not done this before his assessment of her. He reported there was no clarity between the care staff and the kitchen staff over who would be responsible for the consistency of Mrs B’s diet: he pointed out this increased the risk of inappropriate consistencies. He said he had visited twice subsequently and on neither occasion was the diet being offered according to his recommendations. Mrs B had suffered an aspiration pneumonia which was a possible outcome of the diet which was being given. The SLT also said there was medication left on Mrs B’s lips
15. In March 2018 Mrs X raised safeguarding concerns about the care and treatment of her mother in the home. In particular she was concerned that her mother was often left in a wet pad, that faeces which she smeared around her face and in her mouth had not been properly cleaned away and her hands and nails were similarly soiled. She complained that her mother’s medication was not being properly given as there were part-tablets left on her lips or in her mouth. She said in her email to the safeguarding social worker that Mrs B’s SLT had also said he would raise concerns about the fact that Mrs X’s food was not being prepared to the right consistency, despite his previous advice to the care home.
16. Mrs X clearly marked her email ‘Private and Confidential please’. She said she did not want her or her mother’s name mentioned in complaints against the home as she was concerned about reprisals against her elderly and vulnerable mother.
17. The safeguarding social worker responded that she would be visiting the care home and looking at file notes, as well as visiting Mrs B. The safeguarding social worker passed on Mrs X’s email to the care home. The care home manager said she would investigate but did not understand the concerns about food, as she said Mrs X herself on occasion tried to give her mother solid food.
18. At the beginning of April Mrs X emailed the safeguarding social worker and her mother’s own social worker again. She enclosed two photographs. The first photograph was of medication on and around her mother’s mouth. Mrs X said she had visited that morning at 09.30 with the dentist who was going to extract a tooth. They were both concerned about the amount of medication around Mrs B’s mouth. The care-worker told Mrs X it was slow-release medication which had been given at 7am. Mrs X checked with a pharmacist (on the advice of the dentist) who told her the medication had been left far too long if it had been given over 2 hours previously, and Mrs B could not have ingested the whole dose. Mrs X wrote that she wanted to add this incident as one of neglect to the safeguarding concerns raised.
19. Mrs X’s second photograph was of her mother’s mouth. She said she had visited an hour after her mother’s pad had been changed but asked the nurse on duty to check Mrs B as it looked as though she had faeces on and around her mouth. She said the careworker acknowledged they had found Mrs B smearing faeces on her sheets as well as putting them in her mouth and said they had already cleaned her. Mrs X said it took her another 20 minutes to clean her mother’s mouth thoroughly with a sponge. She said the treatment of her mother was without dignity or respect. She added that the care notes did not document what had happened, just that “all cares were given”. She said she had complained previously of faeces on the bed itself and it had taken up to five days to clean it properly. Mrs X also raised this concern with the CQC as regulatory body.
20. On 12 April the safeguarding social worker emailed Mrs X: she said she had visited the care home and spoken to the care staff. She said “I understand you have previously met with management about the care of your mother and been asked to desist giving your mother inappropriate foods and extra fluids outside the professional recommendations. …. I ask that you do not feed your mother or provide any personal care outside of the prescribed care plan, to do so places your mother at risk of injury.”

The safeguarding investigation conclusion and Mrs X’s response

21. On 1 June the safeguarding social worker wrote to Mrs X with the ‘conclusions and recommendations’ from her safeguarding investigation.
22. The safeguarding social worker wrote in her conclusion: ‘I have made extensive enquiries and have discovered that staff have been intimidated, abused and placed under extreme pressure to do what (Mrs X) has dictated: often outside the care plans ….I feel the [Mrs X’s ]allegations are unfounded: however, I am left with serious safeguarding concerns around the behaviour and actions of (Mrs X).’ She added that if necessary legal advice should be taken with a view to Court of Protection proceedings.
23. Among the recommendations were requests for Mrs X to stop providing any personal care outside of the care plan for her mother; to stop feeding her ‘inappropriate foods’ outside her care plan; to stop the ‘undignified and unnecessary’ inspection of Mrs B’s genital area; to recognise how many incontinence pads were allocated and either stop asking for ‘unnecessary’ changes or pay for additional pads herself; to stop being rude or abusive to the care staff. She recommended staff should report any inappropriate feeding or intervention by Mrs X, and record any incidences of rudeness towards them. She said Mrs X needed to understand that her mother had coprophagia and similar incidents would increase.
24. Mrs X replied. She asked what had happened about the safeguarding concerns she herself had raised, as the report did not mention them. She said she could not understand how the safeguarding social worker had reached her conclusions about Mrs X’s behaviour without discussing the allegations with her before publishing her report. She said no attempt had been made to verify her own allegations by discussing them with any other member of her or Mrs B’s family, or with the SLT or dentist.
25. Mrs X responded to the allegations which had been made. She said she checked her mother’s pad to see if it was wet as at times she had found her mother wet or soiled, or her pad askew and had to ask the careworkers to change it. She said the GP had asked her to ‘keep an eye’ on her mother’s condition in this respect as there had been times when she had suffered severe nappy-rash and bleeding as a result of the failure to change and/or clean her properly. She said she followed the SLT-prescribed diet and fluid plans. She denied being abusive to care staff. She challenged the recommendations and conclusions and complained that her own allegations had gone investigated.

The complaint investigation

26. On 6 June Mrs X complained to the Council. She complained about the failure to investigate her safeguarding concerns. She complained that the safeguarding social worker had not discussed the counter-allegations with her or her family before publishing her conclusions, or supported her mother to be represented, in defiance of the council’s safeguarding policy. She complained that the safeguarding social worker had circulated her initial email marked ‘private and confidential’ without her permission to the care home, and asked whether this was a data breach. She said the investigation had made the situation worse as she was now reluctant to raise any matters of concern at the home. She also asked how long the complaint investigation would take.
27. The Council acknowledged the complaint on 14 June, clarified the terms of the investigation and said it would aim to respond within 20 working days.
28. The Council’s investigating officer contacted Mrs X again on 10 August to discuss the complaint. She said it would take a little longer to complete the investigation.
29. The Council’s consultant social worker (CSW) responded to the complaint on 10 September. She said she had considered the complaints that Mrs X’s two safeguarding concerns had not been properly investigated; that the safeguarding social worker had not discussed with Mrs B, or her mother or family, the counter allegations made by staff or followed the council’s multiagency safeguarding protocol in terms of enabling Mrs B to provide her views; and that sending on Mrs X’s email direct to the care provider when it was clearly marked ‘private and confidential’ (and contained third party details) was a data breach.
30. The CSW said in respect of the concern raised by the SLT, “this concern was raised with the provider who advised that every effort was made by staff to follow the guidelines in place regarding food consistency. However it is not clear if any evidence in the form of food charts was provided to ratify this was actually the case”. For that reason, she partially upheld the complaint.
31. In respect of the complaints raised with the CQC that Mrs B was left smeared in faeces, the CSW said the concern was raised with the care provider. The care provider had said staff were trying to maintain Mrs B’s hygiene by cleaning her more often, but again there was no evidence in the safeguarding papers in terms of care records. She partially upheld this complaint.
32. The CSW partially upheld the second complaint. She said the safeguarding social worker had tried to engage with Mrs B but was unable to because Mrs B was assessed as lacking capacity. She said it was unclear if the safeguarding social worker would have invited comments from Mrs X on her mother’s behalf (and the social worker was no longer employed by the Council to ask). She said although Mrs X had provided information in emails, this was less than the face to face discussion Mrs X might have expected.
33. The CSW said she could not find an email trail to prove the safeguarding social worker had sent Mrs X’s email to the care home. She said this aspect of the complaint was therefore inconclusive.
34. The CSW apologised for the way Mrs X’s safeguarding concerns had been handled. She said staff were now aware that all safeguarding concerns should be registered on the safeguarding database.
35. Mrs X wrote to the CSW in response on 18 September. She said there should be an opportunity for the safeguarding concerns she raised to be reviewed, as she did not believe the safeguarding social worker’s reports and conclusions should stand. She said there were omissions in the response – for example no reference to the dentist who had also raised an alert and (she said) been told by the safeguarding social worker that “there were too many people involved already”.
36. Mrs X said she did not accept the ‘partial’ findings as she had been led to believe she would have an opportunity to talk to the safeguarding social worker before the investigation was concluded, but was not.
37. Mrs X did not accept the inconclusive finding. She pointed out that she had sent a copy of the email trail to the Council with her complaint, showing that the safeguarding social worker had forwarded to the care home manager the email from Mrs X marked ‘private and confidential’. Mrs X attached a further copy of the email trail as evidence. She said if the Council did not take action, she herself would report it to the Information Commissioner (ICO).
38. Mrs X asked the Council to escalate her complaint (as offered in the CSW’s letter of 10 September).
39. In February 2019 Mrs X reported the data breach to the ICO as she had heard nothing further from the Council.
40. In May 2019 the Council responded to Mrs X. It said it understood a review of the safeguarding investigation had already been offered but Mrs X had refused. It said the information from the dentist had been used as part of the concerns under investigation already. It now upheld completely the complaint that there had been insufficient communication with members of Mrs B’s family. It agreed there had been a data breach and said it had asked the care home manager to delete the email. It said as the safeguarding social worker had left the Council, it could not contact her about the error.
41. The Council apologised for the length of time taken to respond to Mrs X again. It said it had been thought she would agree to the review proposed by the CSW. It suggested it might be time for a reassessment of Mrs B’s needs with a view to considering alternative provision.
42. In June the ICO wrote to the Council and asked it to review its handling of the data breach.
43. Mrs X complained to the Ombudsman. She said the Council claimed to have offered a review but in fact what it had offered was a review of its procedures, not the investigation of her allegations. She said she wanted the original investigation and report overturned but the Council – partly because of its delay in responding – could only now offer a new investigation into the current situation. She said the outcome of the original investigation was that she was subject to unpleasant behaviour from a small group of carers who were angry she had reported them: to the extent that she no longer wanted to visit the home or her mother. She said the safeguarding social worker’s accusations against her had been personal and hurtful as well as untrue. She said the experience had been traumatic and stressful and affected her emotional well-being.
44. The Council says it has not been able to find any care records or staff witness statements in the safeguarding file. It has not been able to find any documents which evidence the safeguarding social worker’s approach to communicating with Mrs B or a completed mental capacity assessment. The Council says it took seriously the data breach and has provided mandatory training on data protection to staff in the safeguarding team. The safeguarding social worker has left the Council’s employment.
45. Mrs B has now sadly died.

Analysis

46. The safeguarding concerns which Mrs X, the SLT and the dentist raised were minimised in favour of the counter-evidence the safeguarding social worker said she obtained at the care home. The Council acknowledges it cannot trace any such evidence on its files. There was an almost complete reliance by the safeguarding social worker on the verbal reports of the care home staff. That led to a report which amounted to an unwarranted personal attack on Mrs X, and which Mrs X had no opportunity to discuss before it was finalised.
47. The Council failed to follow the safeguarding process correctly. It acknowledges that the social worker failed to log Mrs X’s concerns on its database.
48. The Council upheld the complaint that by failing to ensure Mrs B’s views were fully represented it had failed to follow the multi-agency safeguarding procedure. Although the safeguarding social worker said Mrs B lacked capacity to communicate her views, there is no evidence that she completed a mental capacity assessment under the Mental Capacity Act 2005.
49. The Council failed to keep Mrs X’s email confidential when she specifically requested it should do so, and when it was clear it not only contained third party data but also would have an adverse effect on her relationship with care home staff. That was fault for which the Council has apologised and put additional training in place.
50. The Council failed to respond to Mrs X’s complaints properly. The first response partially upheld complaints which should have been fully upheld (one of which, about the safeguarding procedure, it later upheld completely). It reached an inconclusive finding on one complaint and said there was no trace the safeguarding social worker had forwarded Mrs X’s email, when Mrs X had already provided the evidence in her original complaint submission.
51. The Council also delayed both responses. By the time of the second response in May 2019, 11 months had passed since the original complaint and investigation, the safeguarding social worker had left and could not be contacted, and it was too late to carry out a proper, unbiased investigation of the safeguarding concerns Mrs X raised.
52. The injustice to Mrs X (and potentially to Mrs B) was significant. Mrs X was left with the anxiety caused by the concerns about her mother’s care. She was also the subject of a personal attack, founded only on the verbal reports of the care home staff, which was made final without an opportunity for comment. In addition she was the subject of what she says was “petty, vindictive behaviour” by a small group of care workers to whom her safeguarding concerns had been incorrectly communicated.

Agreed action

53. Mrs B has now died and too long has passed since the original safeguarding investigation to believe that a fresh investigation of the same concerns could be at all effective. However, Mrs X should have an opportunity to ensure her response to the allegations made in the safeguarding social worker’s report is put on file alongside it, with an acknowledgment from the Council that the first investigation was flawed. Within three months of my final decision, the Council will take action to put that in place;
54. Within three months of my final decision the Council will consider putting in place a system of checks and balances to ensure the validity of its finalised safeguarding investigations;
55. Within three months of my final decision the Council will review the robustness of its complaints investigations;
56. Within one month of my final decision the Council will offer Mrs X a payment of £1000 to recognise the significant anxiety and distress she suffered as a result of its actions during the safeguarding investigation;
57. Within one month of my final decision the Council will offer Mrs X an additional payment of £500 in recognition of the additional anxiety caused by the delay in its complaints investigation.

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Final decision

58. Fault by the Council caused injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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