Royal Borough of Kingston upon Thames (19 012 289)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 18 Jan 2021

The Ombudsman's final decision:

Summary: Mrs C complained about the way in which the Council carried out a safeguarding investigation against her. We found that, while the Council was not at fault for the time it took to complete the investigation, it failed to sufficiently consider whether it would be possible to interview Mrs C before it made its decision. This resulted in distress to her. The Council has agreed to apologise for this and review whether it will be able to interview Mrs C.

The complaint

  1. The complainant, whom I shall calls Mrs C, says:
    • It took an unreasonable amount of time (11 months) for the Council to carry out and complete its Safeguarding Investigation. As a result, she and her husband were in uncertainty for longer as necessary, and she remained suspended from her work for longer as necessary. This resulted in additional distress that was avoidable.
    • The Council failed to involve them:
        1. The investigator failed to meet with them to enable them to provide further information and documents directly to the Council’s investigator.
        2. It failed to provide them an opportunity to attend any meetings. When they were invited to a meeting, the Council failed to give them sufficient notice to both attend.
  2. As a result, they did not have sufficient opportunity to put their case to the investigator, respond to any concerns / questions he may have had, before he made a decision.
  3. Mrs C also said there was a conflict of interest, because in her job, she had known the Council’s lead investigator very well before.

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What I have investigated

  1. I have investigated the way through which the Council carried out its safeguarding investigation. I have not come to a view whether financial abuse has taken place. This matter is currently still being dealt with by the Crown Prosecution Service.

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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. 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

  1. I considered the information I received from Mrs C and the Council. I shared a copy of my draft decision statement with Mrs C and the Council and considered any comments I received, before I made my final decision.

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What I found

  1. Mr X has a learning disability and stays at a placement. Mr X’s bank account has been managed by Mrs C since 2015. Mrs C (who is Mr X’s sister-in-law) says that Mr X had capacity at the time to make decisions about his finances, and she only "helped and supported" him.
  2. A family member accused Mr and Mrs C of financial abuse, including unaccounted money being withdrawn via a debit card and cheques / bank, and of transactions made to Mr and Mrs C and other unknown recipients. As a result, the Council had to launch a safeguarding investigation in April 2018.
  3. Mrs C said she is unhappy with the way the Council carried out the safeguarding investigation. She said:
    • It took an unreasonable amount of time (11 months) for the Council to carry out and complete its Safeguarding Investigation. As a result, she and her husband were in uncertainty for longer as necessary, and she remained suspended from her work for longer as necessary. This resulted in additional distress that was avoidable.
    • The Council failed to involve them. The investigator failed to meet with them to enable them to:
        1. Discuss matters and provide them an opportunity to give any (further) verbal information and clarifications directly to the Council’s investigator, before reaching a view on the serious allegations.
        2. Provide them with an opportunity to (subsequently) provide any (further) documents / evidence to the Council’s investigator in support of their case / explanations, before reaching a view on the serious allegations.
        3. Tell the Council’s investigator what staff members and which documents from the care provider would be able to provide more clarity on how Mr and Mrs C used Mr X’s money, which the investigator could consider before reaching a view on the serious allegations.
    • The Council also failed to provide them with an opportunity to attend any meetings. Any meetings they were invited to, the Council failed to give them sufficient notice to both attend.
    • As a result, they did not have sufficient opportunity to put their case to the investigator, respond to any concerns / questions he may have had, before he made a decision.
    • There was also a conflict of interest because, in her roles, she had previously known the Council’s lead investigator very well.
  4. The Council says it referred the allegations to the Police in May 2018, as the allegations were criminal in nature. Initially the view was to allow the police to be the lead investigation authority and the safeguarding adults investigation to be informed by the outcome of the police investigation.
  5. The police reported at a meeting in September 2018, that there had been a considerable delay in its investigation, because the investigating police officer went on long-term sick leave. As such, another officer took over the investigation at the end of July 2018. The Council was awaiting further feedback from the police and were aware they could not unduly influence the police’s investigation.
  6. The Council told Mr X about the investigation in September 2018. He agreed to the Council applying for a formal appointeeship to manage his finances. This would protect him from potential financial abuse in the future. The Council also arranged an Independent Advocate (IMCA) for Mr X.
  7. The investigator called Mrs C in September 2018 to explain his role, provide an update and explained he had not been able to get in touch with her earlier because she was to be interviewed by the police. The record states that Mrs C accepted this. The Council told me it promised to keep Mrs C updated about the progress of any investigation, but the investigator did not make a promise to meet with them to obtain further evidence, as implied by Mrs C.
  8. The Council decided to organise an independent assessment of Mr X’s capacity to make day-to-day decisions about his finances and his capacity to agree loans and gifts to Mrs C. The safeguarding report states that the capacity assessment carried out by a consultant in October 2018 concluded that Mr X was unable to weigh up different views, actions, or consequences in regard to his financial management. He lacked the capacity to manage his day-to-day finances and / or inheritance money. As such, on the balance of probabilities, it was unlikely that Mr X had the capacity to make decisions to loan money to Mr and Mrs C and Mrs C’s father, from 2014-2016.
  9. The police carried out interviews during September and December 2018, including with Mr X and Mr and Mrs C. According to the Council’s safeguarding report, Mr X became distressed that money was removed from his account without his permission.
  10. Mr and Mrs C told me the Council and the Police both told them that the safeguarding investigator would talk to them as part of the safeguarding investigation. However, this did not happen. Mr and Mrs C say they sent several texts to the Council, as well as a letter in January 2019, in which they asked the Council’s investigator to meet with them. However, these were not responded to. The investigator did not meet with them before the Council reached its decision on the allegation.
  11. The Council says:
    • The investigator had a telephone conversation with Mr C in November 2018 and wrote a letter to him in December 2018. During this time, it was awaiting on the outcome of the police investigation, which was intended to be referred onto the Crown Prosecution Service in January 2019. However, subsequent issues came to light that led to further lines of enquiry and interviews with Mrs C, and the Police did not meet that deadline. The Council says that any discussions between the Council’s investigator and Mrs C about transactions / loans / financial actions were not possible as they would potentially compromise the ongoing police investigation.
    • However, following the meeting in February 2019, and the evidence that the investigation was having a negative impact on Mr X’s emotional well-being, the investigator concluded, after considering the extensive information the police had already obtained, that on the balance of probability, Mr X had likely experienced financial abuse as there were outstanding monies that were not accounted for that were managed at the time by Mrs C that Mr X was not aware of. There was no subsequent meeting between the investigator and Mr and Mrs C to discuss the investigation.
  12. The Council used and referred to information collected by the police, amongst others through interviews, to come to a view on the balance of probabilities as to whether financial abused had occurred. The evidence the Council presented in the safeguarding report was very extensive and detailed, and focussed on several transactions. The report concluded that:
    • Mr X was not fully competent and able to manage his finances. He did not fundamentally possess the required understanding to manage his finances.
    • Mr X’s advocate noted that he found Mr X to be quite "suggestible".
    • The above indicated Mr X was vulnerable to exploitation due to lack of capacity regarding his finances.
    • On the balance of probabilities, and considering the various transactions and the explanations provided by Mrs C and others, financial abuse had occurred.
  13. The Council says that:
    • Whilst police investigations were underway, it was not possible for the Council’s investigator to interview the people alleged to have caused harm due risk of damaging evidence.
    • Mr and Mrs C had enough opportunity to present their statements and information to the police. The enquiry report contained their explanations for the use of Mr X’s money, obtained via the police interview summaries.
    • The Police and the Council spoke to staff from the care provider, who were also involved in meetings. As such, the staff members had an opportunity to provide any relevant information or documents.
  14. Mrs C told me that, when they met with the police, they only discussed specific issues and questions with them. The police told them they could discuss other issues with the council safeguarding investigator at a later date.
  15. With regards to the matter of a potential conflict of interest, the Council says that this was raised by the Council’s Fraud Department. The previous working relationship between the safeguarding investigator and Mrs C was discussed with the Council’s Assistant Director and the South West London Fraud Partnership. It was agreed that the investigator could objectively investigate the matter of alleged financial abuse of Mr X. A Safeguarding Manager was appointed to support and supervise the investigator with the enquiry and to ensure impartial views through enquiry and impartial coordination. The investigator was found to have acted in an objective, professional manner.
  16. The only safeguarding meeting that I would have expected the Council to invite Mr and Mrs C to, was the plan and review meeting on 2 May 2019, where the safeguarding findings would be discussed. The Council invited Mr and Mrs C on 25 April 2019, but Mr and Mrs C did not attend the meeting. The Council also offered alternative ways for them to be involved if they preferred to meet in a different way.
  17. Mrs C told me the Council initially sent the invitation to the wrong email address and she only found out about the meeting on 28 April. She subsequently asked the investigator by text to postpone the meeting to another date. However, she did not get a response and later found out the investigator had left his job.

Analysis

Unreasonable delay

  1. I found there was no fault by the Council, with regards to this aspect of the complaint. The Council has explained why the police had to take the lead in the investigation. It has also explained why it took longer than expected for the Police to start its investigation. The police subsequently had to spend several months carrying out multiple interviews and collecting / processing documents. Once the Police obtained this information, the Council used it to come to a view, on the balance of probabilities, within a reasonable timeframe.

The way in which Mr and Mrs C were involved in the investigation

  1. The Council has explained that the investigation was led by the Police. As such, it was up to the police to collect all the relevant information and documentation from all those involved. The Council explained that discussions between the Council’s investigator and Mrs C about the details of the case were not possible, due to the ongoing police investigation and the real possibility that such actions could potentially compromise the ongoing police investigation.
  2. In terms of natural justice, it is important to provide an opportunity to the alleged perpetrator to explain their actions. The Council says that Mr and Mrs C had an opportunity to do this during the interviews with the police. I found that, before reaching a decision on the safeguarding investigation, the Council should have asked the police whether they would have any objections or concerns if a meeting between the Council and Mr and Mrs C could jeopardise the police investigation. This was even more important when Mr and Mrs C asked the Council to provide them with this opportunity in January 2019. This did not happen, and the Council did not explain to them at the time why they felt they could not meet with them. This was fault.
  3. However, I am unable to come to a view if the police would have had any objections and/or, if not, if such a meeting would have made a difference to the outcome of the safeguarding investigation.
  4. The timing of the invite from the Council did not amount to fault.

The alleged conflict of interest

  1. A key point for any organisation is to avoid any ‘appearance’ of conflict of interest. This is even more important when it relates to serious allegations. I found there has been an ‘appearance’ of conflict here and I can understand why Mrs C feels that a former colleague / manager should not have investigated this allegation. In terms of the trust of all stakeholders involved, it is paramount to ensure in such allegations of serious wrongdoing, that a Council selects an investigator who is as far away removed as reasonably possible from the alleged perpetrator. This did not happen, which is fault.
  2. However, there is no evidence to conclude that this had an impact on the investigation or its outcome.

Agreed action

  1. I recommend that, within four weeks of my decision, the Council should:
    • Provide an apology for the faults identified above and the distress this caused.
    • Ask the police if it has any objections if the Council meets with Mr and Mrs C to see what additional verbal / written information they want to provide to the Council, as part of the Safeguarding Investigation. If the police agrees to this, the Council should review whether any of the additional information Mr and Mrs C subsequently provide results in a different decision.
    • It should review its procedures to ensure the faults pointed out in paragraph 28 and 31 will not happen again.

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Final decision

  1. For reasons explained above, I found fault with the Actions of the Council. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman

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