Summary: There is no fault by the Council in the way it undertook a safeguarding investigation into concerns about how Mr X and his brother managed his late mother’s finances. It acted properly and in accordance with the law

The complaint

1. Mr X complains about how the Council conducted a safeguarding investigation into concerns about his late mother’s finances. He says:

• a social worker failed to make him aware he was subject to a safeguarding investigation
• as next of kin he was not informed his mother was considered at risk of harm
• only his brother was contacted re financial assessment
• he was not contacted about the care fees.

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The Ombudsman’s role and powers

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. 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 have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council the opportunity to comment on a draft of this document.

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What I found

Relevant legislation

• Section 42 of the Care Act 2014 (the Act) defines an adult at risk as an adult who: has needs for care and support (whether or not the local authority is meeting any of those needs) and;
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect;
• the local authority retains the responsibility for overseeing a safeguarding enquiry and ensuring that any investigation satisfies its duty under section 42 to decide what action (if any) is necessary to help and protect the adult, and to ensure that such action is taken when necessary.

5. The Act sets out a clear legal framework for how local authorities and other parts of the system should protect adults at risk of abuse or neglect. It must:

• lead a multi-agency local adult safeguarding system that seeks to prevent abuse and neglect and stop it quickly when it happens;
• make enquiries, or request others to make them, when it thinks an adult with care and support needs may be at risk of abuse or neglect and,
• determine what action may be needed.

6. The Mental Capacity Act 2005 (MCA) and the Care Act work together to promote the empowerment, safety and wellbeing of adults with care and support needs. Section 44 of the MCA prioritises people’s safety by making willful neglect or mistreatment of an adult who lacks capacity to make decisions a criminal offence.

Information supplied by the Council

7. The Council has requested that the Ombudsman deal with the information it has supplied during this investigation under section 32(3) of the Local Government Act 1974. This Act prohibits disclosure of information obtained during the course of an investigation where it is considered doing so is contrary to public interest, or that the information is sensitive and relates to another person. In this case some of the information relates to Mrs Y and Mr X’s brother. Although I am unable to go any into any detail about the content of the records I have seen, I am able to give an overview of events and comment on the decisions taken by the Council.
8. Mr X can be assured I have considered all the records relating to the safeguarding investigation and have given careful consideration to the issues he raised.

What happened

9. Mr X’s late mother was in her eighties. She had vascular dementia. She had been in residential care for many years. Since 2010 her care had been fully funded by NHS Continuing Health care (CHC). CHC funds some or all a person’s care costs when it has been established the need for care is primarily health related.
10. Mr X and his brother jointly held Power of Attorney. Mr X says his brother managed Mrs Y’s financial affairs.
11. In 2017, the NHS deemed Mrs Y was no longer eligible for CHC. Mr X’s brother contacted the Council for assistance with funding. The Council allocated a social worker to undertake a needs assessment of Mrs Y. The social worker provided the Council’s financial assessment team with the contact details of Mr X’s brother.
12. An officer from the financial assessment team contacted Mr X’s brother and a financial assessment of Mrs Y was completed. As part of the financial assessment the Council asked for copies of Mrs Y’s bank statements, which Mr X’s brother provided. This showed a long standing monthly direct debit payment of £489 to Mr X and his brother, which was not being used for Mrs Y.
13. Mr X’s brother wrote to the Council in May 2017. I have seen a copy of the letter, which confirms both he and Mr X used Mrs Y’s money “to help the family”, and this would have been Mrs Y’s wish.
14. The Council completed the financial assessment in July 2017. It was concerned about how Mrs Y’s money had been managed. It referred the matter to its safeguarding team.
15. The safeguarding team received the referral on 19 July 2017. It appointed an investigating officer. The initial information gathered identified potential criminal offences. The Council shared the information with the police. I have seen the notes of discussions between the Council’s investigating officer and the police. The police reviewed the information and determined that a criminal investigation was required. It told the council officer it would inform her of the outcome.
16. The Council’s safeguarding investigation procedure states:

• “The Planning Discussion will not involve the source of risk in the discussion. On advice from the Police it may be necessary to restrict the involvement of other parties if there is the likelihood of a criminal investigation against them. The responsibility for clarifying who is implicated in a potential crime lies with the Police.
• “If a matter is the subject of criminal investigation any interviews with a criminal suspect or witness will be undertaken by the police.
• Nothing directly connected with the abuse incident should be discussed with the parties without prior discussion with the police, as this may affect the quality of any evidence and could adversely affect the prospects of gaining a prosecution”.

17. The Council awaited the outcome of the police investigation. It did not interview Mr X because he had been identified as “a source of the risk” and the subject of a possible criminal investigation. The Council says any discussions with Mr Y’s brother were led by the police.
18. In October 2017 the police asked the Council to refer the matter to the Office of the Public Guardian (OPG) in order it may investigate the actions of Mr X and his brother as attorney’s. The Council informed the OPG the same day.
19. An OPG investigation allows all parties the opportunity to submit evidence, and an opportunity to respond at each stage, until a final hearing and decision. Mr X says the OPG contacted him in November 2017, but he was not provided with any documents to comment on. He says the OPG sent all documents to his brother.
20. The Council’s investigating officer visited the care home and met Mrs Y. Mrs Y was unable to engage. The officer concluded, “Based on this presentation and [Mrs Y’s] known diagnosis of vascular dementia, I do not feel she has the necessary capacity to be interviewed further as part of this process”.
21. In October 2017, the care home contacted the Council to say Mrs Y had unpaid client contributions, and a debt of £5,590.02 had accrued. Mr X and his brother paid the debt in full in November 2017. The care home confirmed if Mrs Y “needs anything the home ask the sons and it is provided so they have no current concerns”.
22. In January 2018 the OPG sent an application to the Court of Protection (COP). The COP suspended Mr X and his brother as attorney’s and appointed the Council as an interim deputy for Mrs Y financial affairs.
23. In March 2018 the Council concluded the safeguarding investigation. It concluded “Allegation of financial abuse - substantiated: At the point of referral in this case, evidence was available to show that [Mr X and his brother] had taken money from their mother's account. This amounts to over £100,000”. The Council had been appointed Mrs Y’s deputy, so the risk of financial abuse was removed.
24. I have seen a copy of the Council’s section 42 safeguarding enquiry report. The officer recorded, “The enquiry has been led by Staffordshire Police and the Office of the Public Guardian and thus their investigations have taken priority over my own”.

Mr X’s response to the allegations

25. Mr X is dissatisfied with the process and outcome of the investigation. He says his brother managed Mrs Y’s day to day financial affairs. He says his brother told him he had taken advice from a solicitor about transferring regular sums from Mrs Y’s account to both their accounts and that he received the money in good faith. He never spent the money and it was available to his mother should she have needed it.
26. Mr X says the Council conducted the safeguarding investigation without his knowledge and believes its failure to communicate with him resulted in unnecessary action by the Police.
27. Mr X says his brother forged his signature on the Power of Attorney registration documents in 2008 and recorded his address wrongly, consequently, he never received documents from the OPG. He says the police and OPG were informed of the alleged forgery twelve months ago.
28. Mr X says he was “completely exonerated” of dishonesty/theft at criminal trial in February 2019.

Analysis

29. It is not my role to determine whether the allegations made against Mr X have any substance. My role is to determine if, following the concerns about possible mismanagement of Mrs Y’s financial affairs, the Council acted properly.
30. I have considered the process the Council followed and found no fault in its actions.
31. The financial assessment of Mrs Y raised concerns about how her financial affairs were managed. These were legitimate concerns for the Council, and it had a responsibility to investigate. The initial information gathered indicated a potential criminal offence. The Council had a duty to inform the police.
32. The Council did not interview Mr X or his brother because the police were leading the investigation. Mr X believes the Council should have offered him the opportunity to comment before contacting the police. Mr X is incorrect. The Council adhered to its safeguarding policy, set out above in paragraph 16.
33. The police asked the Council to refer the matter to the OPG for investigation. The Council did so promptly. An OPG investigation allows people subject to an investigation to comment on any allegations and provide evidence. Mr X says the OPG made contact with him in November 2017, but it did not provide him with any documents, the information was sent only to Mr X’s brother. This is a matter Mr X should address with the OPG.
34. Mr X and his brother had power of attorney jointly and severally, so the Council could contact either about Mrs Y’s care fees. It did not have to be both.
35. I realise a lack of involvement in the safeguarding process has caused Mr X to question the actions of the Council. I can confirm the Council acted properly and in accordance with the law.

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Final decision

36. There is no evidence of fault by the Council in this complaint.
37. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman