Hampshire County Council (19 010 704)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 23 Oct 2020

The Ombudsman's final decision:

Summary: The Ombudsman cannot investigate Ms D’s complaint about decisions made by the Council during a best interest meeting about her partner, as this is not a matter for the Ombudsman. Whilst there is evidence of fault in how the Council responded to Ms D’s safeguarding concerns and complaint, this did not cause her or her partner an injustice.

The complaint

  1. The complainant, whom I shall refer to as Ms D complains that the Council failed to fully investigate safeguarding concerns she raised about her partner, whom I shall refer to as Mr E. Ms D also complains about how the Council dealt with her complaint about this matter.
  2. Ms D also complains about decisions made by the Council during a best interest meeting about Mr E.

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What I have investigated

  1. I have investigated how the Council responded to Ms D’s safeguarding concerns, and how it responded to her 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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

  1. As part of the investigation, I have:
    • considered the complaint and information provided by Ms D; and
    • considered information provided by the Council; and
    • communicated with Ms D about her complaint.
  2. I have also sent both parties a draft version of this decision and invited their comments.

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What I found

Legislation, guidance and policy

Best interest decision making

  1. A key principle of the Mental Capacity Act 2005 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.
  2. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
  3. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

Court of Protection

  1. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
  2. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection
    • decides whether a person has capacity to make a particular decision for themselves
    • makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
    • appoints deputies to make decisions for people lacking capacity to make those decisions
    • decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid, and
    • removes deputies or attorneys who fail to carry out their duties.
  3. Once deputies have been appointed by the Court of Protection they are supervised by the Office of the Public Guardian (OPG). Anyone with concerns about the actions of a deputy can report these to the OPG.

Adult safeguarding

  1. Under Section 42 of the Care Act 2014, a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and that person 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.
  2. Upon receiving a referral, the Councils policy states it first gathers further information about the referral and decides whether to progress the referral to Section 42 safeguarding enquiries, whether alternative action is needed or whether the case should be closed.

Complaint handling

  1. The Council’s complaints policy explains that responsibility for responding to complaints can be delegated from Director level to a member of their staff, as long as the complaint is not directed against that member of staff.

What happened

  1. In August 2018, Mr E was in a nursing home and lacked mental capacity.
  2. In August 2018, a nurse at Mr E’s nursing home contacted the Council and raised concerns that Mr E’s daughter was selling his property. Around the same time, Mr E’s friend contacted Ms D raising the same concerns.
  3. Ms D subsequently provided the Council with a screenshot showing that property was being sold online. Ms D said she provided the Council with contact details of Mr E’s friends.
  4. Ms D told the Council that Mr E’s daughter had admitted selling Mr E’s property to two of his friends, and that the friends would be willing to put this in writing.
  5. Records show, as part of its enquiries, the Council:
    • Spoke with Ms D and viewed evidence she had provided in support of her allegation.
    • Spoke with Mr E and asked him to confirm if any of the items sold were his.
    • Spoke to Mr E’s daughter and asked them about the sold items.
  6. Records show that Mr E told the Council that the items did not belong to him and that he had no concerns with his daughter having a key for his property.
  7. Mr E’s daughter initially denied the accusations. However, upon the Council contacting her again she said that she had put some items up for sale online but had since taken them down. Mr E’s daughter told the Council she had not sold any items and would not do so in the future.
  8. The Council made the decision that no further action would be taken, and the case would be closed. It decided not to inform the police of the allegations as it could not determine if any items had been sold. However, it did advise Ms D that she could contact the police if she wished.
  9. The Court of Protection subsequently granted deputyship for Mr E’s Property and Finance to Ms D and Mr E’s son.
  10. In December 2018, the Council held a Family Group Conference. Attendees included Ms D, Mr E’s parents and his sister.
  11. Records show that during the conference attendees told Mr E’s Social Worker that Mr E’s son and daughter had taken items including clothes and wine from Mr E’s property.
  12. Records show that the Social Worker told Ms D that he and Mr E’s son had deputyship, and that she should put her concerns down in writing to Mr E’s son. However, if this did not resolve things Ms D could raise her concerns with the Office of the Public Guardian.
  13. Ms D complained to the Council in which she raised several issues, some of which involved the District Service Manager.
  14. The Council completed its complaints process, and at stage 2 of this process, Ms D received a response from the District Service Manager whom she had mentioned in her complaint.
  15. In its response to the Ombudsman, the Council said that, while its response had been made in consultation with the Head of Service, it accepted the decision that the District Service Manager respond was not in accordance with its policy.
  16. The Council said it will ensure that in future, complaints about senior managers are responded to by an independent manager.

Analysis

August safeguarding referral

  1. It is not for the Ombudsman to reinvestigate the safeguarding referral but to consider whether the Council conducted a suitable investigation in line with its safeguarding procedures.
  2. Upon being alerted to Ms D’s concerns, the Council made the decision to make enquiries. The Council spoke to all relevant parties, and asked them about the allegations, before making its decision to close the case.
  3. Ms D thinks the Council should have contacted Mr E’s friends, who say they witnessed the items being sold online and were told that it was Mr E’s daughter selling the items.
  4. However, I do not agree. I am satisfied that the Council had a clear understanding of the allegations and had been told what was being sold and by whom. Therefore, on balance, I do not consider that the interviewing of these witnesses would have changed the outcome of their investigation.
  5. I find no fault in how the Council responded to Ms D’s concerns. Without the presence of fault, I am unable to question the Councils decision to close the case.

Further allegations

  1. Ms D says that the allegations she raised in the Family Group Conference should have prompted the Council to carry out a further safeguarding investigation.
  2. The allegation made was that Mr E’s son and daughter had removed property from his house.
  3. Because Ms D and Mr E’s son had been appointed deputies by the Court of Protection, the Council advised Ms D to contact Mr E’s son, and if they could not resolve the issue then Ms D should contact the Office of the Public Guardian (OPG).
  4. Upon receiving an allegation of property theft, the Ombudsman would expect to see evidence that the Council properly considered if there was a safeguarding concern and to document their decision whether to proceed with Section 42 enquiries. However, in this instance I have seen no evidence that this was done. This is fault.
  5. However, the OPG’s role is to protect people who lack capacity, and it has a supervisory role over deputies appointed by the Court of Protection. The OPG was therefore the body best placed to address Ms D’s concerns.
  6. For this reason, I conclude that, on balance, even if the Council had properly considered the referral, it would have reached the same conclusion. I therefore do not consider that Mr E suffered an injustice.

Complaint handling

  1. A member of staff mentioned in Ms D’s complaint provided a response. This is not in accordance with the Council’s complaints policy and is therefore fault.
  2. However, because I have not seen any evidence of fault leading to an injustice in how the Council dealt with any of the issues I have investigated, I am unable to conclude that this fault led to any injustice to Ms D or Mr E. It is for this reason I do not propose to make any recommendations in this case.

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Final decision

  1. I have concluded my investigation on the basis that there was fault, however this did not cause an injustice.

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Parts of the complaint that I did not investigate

  1. I did not investigate Ms D’s complaint about decisions made during a meeting about Mr E’s best interests. Disputes over decisions about capacity are not a matter for the Ombudsman but for the Court of Protection.

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Investigator's decision on behalf of the Ombudsman

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