Summary: Ms X complained the Council failed to involve her in a safeguarding enquiry concerning her relative Mr Y. The Council was at fault as it did not discuss the concerns with Ms X. The Council has agreed to apologise to Ms X and review the way it conducted the investigation to identify any lessons to be learned. There was no fault in the actions the Council took as a result of the safeguarding investigation.

The complaint

1. Ms X complains the Council failed to involve her, as Mr Y’s relative and carer, in a safeguarding enquiry and has restricted her ability to take him out without properly considering his wishes and feelings, impacting on their relationship.

Back to top

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)

Back to top

How I considered this complaint

4. I have considered the information supplied in writing and on the telephone by Ms X’s representative on her behalf.
5. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Ms X’s representative and the Council the opportunity to comment on a draft of this decision. I considered their comments in reaching my final decision.

Back to top

What I found

7. 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 cannot protect himself. 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). The Council follows the West Midlands Adult Safeguarding policy and procedures.
8. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
9. A person must be presumed to have capacity to make a decision unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:
• because he makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
10. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
11. 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.

What happened

12. Mr Y is elderly and lives in a care home. He has dementia and physical health conditions which affect his mobility. His short-term memory is variable. Mr Y’s benefits were managed by a money management company.
13. In July 2018 the care home raised a safeguarding alert with the Council over concerns raised about Mr Y’s money being taken by family members. Ms X says she was aware Mr Y had raised with care home staff he believed he had lost £50.
14. The Council recorded the concern as relating to Ms X’s mother. It investigated the concern. It carried out some checks and information gathering. The social worker spoke with Mr Y on several occasions with a staff member present. They also spoke with the police, the care home and the bank. In the safeguarding records the Council noted the money management company said when Mr Y left his previous care home Ms X had Mr Y’s bank book and her name was added to the account to enable her to access personal money for him.
15. Mr Y’s bank statement showed regular cash withdrawals. The bank put a block on Mr Y’s account as it was concerned about the withdrawals on the account.
16. The police also undertook some enquiries, including visiting Ms X in November 2018, but decided there was not enough evidence to proceed with a criminal prosecution.
17. In December 2018 Mr Y visited the bank with the social worker to discuss his account. The bank confirmed Ms X was the named representative on the account and at the time Mr Y opened the account there were no concerns about Mr Y’s capacity. The bank placed conditions on the account so Mr Y could withdraw money up to £50 but his appointee could no longer do so. The account was later closed with Mr Y’s money moved over to a money managed account as Mr Y agreed for the money management company to look after his bank account as well as his benefits.
18. The Council decided to proceed with a safeguarding investigation due to the concerns raised and based on the initial evidence it had gathered. It appointed an independent advocate to support Mr Y through the process and to ensure his views were taken into account. Following discussion with Mr Y and his advocate it agreed a member of care staff should be present when family members visited Mr Y. Ms X first became aware of this when she visited Mr Y in February 2019 and was not allowed to take him out. Ms X continued to visit Mr Y at the home.
19. The Council held a safeguarding meeting in March 2019 and Mr Y’s advocate attended the meeting on his behalf. The meeting developed a plan to support Mr Y. This included a staff member being present when Mr Y went out with family, ensuring receipts were obtained for any expenditure and the money management company managing Mr Y’s bank account in future.
20. The Council also agreed to write to Ms X’s mother on his behalf requesting that his money be returned. The Council held a further meeting in April 2019 when it decided to close the safeguarding enquiry. Mr Y’s money was now being managed for him and following discussion with Mr Y and his advocate, family were able to visit Mr Y as long as staff members were present so any potential risks were removed.
21. Ms X complained to the Council in May 2019. She wanted to take Mr Y out and to support him buying things he needed. She requested:
• details of the safeguarding referral;
• that her own account of her involvement with Mr Y be taken into account in the safeguarding enquiry;
• confirmation of the outcome of the enquiry including with regards to her and her mother’s ongoing involvement with Mr Y; and
• confirmation that Mr Y’s wishes were taken into account regarding being able to maintain contact with Ms X and her mother.
22. The Council responded in July 2019. It said the safeguarding process involved Ms X’s mother and the social worker had kept Ms X’s mother updated. It said Ms X was not involved in the safeguarding process. Regarding contact with Mr Y it acknowledged that arrangements needed to be confirmed with the family and care home. Ms X remained unhappy and complained to the Ombudsman.
23. In November 2019 Mr Y requested that he be allowed to go out with family without the involvement of care staff. The Council reviewed Mr Y’s support plan and involved Ms X in the review. It met with the family in December 2019 and developed a plan to support Mr X going out with family while reducing any potential risks. This included giving the family member Mr Y’s money when they went out, the family providing receipts for any expenditure and the family giving the care home advance notice about taking him out.
24. As part of Mr Y’s support plan in the care home, a staff member will also offer to take Mr Y out on a weekly basis for a meal, to the garden centre or for a coffee. Records show, since January 2020, Mr Y has accepted this on some occasions and declined on others, going out around once every two weeks.

Findings

25. The Council recorded a safeguarding concern regarding Ms X’s mother. However, the evidence shows the concern also involved Ms X. The Council failed to make Ms X aware of the allegations and did not give her the opportunity to respond to them. As a person identified as potentially involved in the concerns raised, the Council should have involved Ms X and provided her with feedback on the outcomes of the safeguarding process. Not doing so is fault.
26. At different times, the Council’s safeguarding enquiries made reference to Ms X and then her mother withdrawing money. Ms X says she was the named person on Mr Y’s account. The Council referred to Ms X and her mother in a confused manner throughout the investigation and this is fault.
27. There are no notes or records within the safeguarding papers of any discussion with Ms X about the allegations. This is fault.
28. Ms X is frustrated at not being involved in the process. However, the Council took into account Mr Y’s wishes and feelings and ensured these were at the centre of the safeguarding investigation. It appointed an independent advocate to ensure his views were properly considered in the safeguarding process and in developing the subsequent action plan to enable Mr Y to go out with family. When Mr Y said he wanted to see family alone the Council met with the family and agreed a plan to enable this to happen.
29. The purpose of a safeguarding investigation is to prevent harm and to remove the risk of harm. The Council properly considered Mr Y’s views and put measures in place to minimise any potential risks.
30. Since the investigation, Mr Y’s capacity has deteriorated and Ms X is in agreement with using a money management company to support Mr Y with his finances.

Agreed action

31. Within one month of the date of this decision, the Council has agreed to apologise to Ms X for not involving her in the safeguarding process.
32. It has also agreed, within two months of the final decision, to review the way the safeguarding investigation was conducted to identify why the errors occurred and any lessons to be learned from this. It should provide the Ombudsman with a copy of its findings.

Back to top

Final decision

33. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

Back to top

Investigator's decision on behalf of the Ombudsman