Summary: The Council has already upheld Mr B’s complaint that it should not have started a safeguarding enquiry into concerns raised about Mr B and should not have continued with the enquiry. We agree this was fault and the Council has agreed to pay Mr B £200 to reflect the injustice he suffered.

The complaint

1. Mr B complains about the Council’s decision to progress a safeguarding enquiry into concerns raised about him. He says he was not at risk of harm and told the Council he did not agree with the enquiry, but it continued the enquiry against his wishes and without his consent.

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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 have discussed the complaint with Mr B. I have considered the documents the Council has sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Safeguarding – Care Act 2014

5. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s adult safeguarding duties. The Council also has its own policies.
6. The Care Act 2014 section 42 says a safeguarding duty applies where an adult:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
7. If the section 42 threshold is met, then the Council must make enquiries or ask others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse and if so, by who.
8. The definition of abuse and neglect is wide and may include self-neglect and hoarding.
9. The guidance says the adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse. What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible.

The Council’s adult safeguarding policy

10. The Council’s policy says the focus of the adult safeguarding procedure is on achieving an outcome which supports or offers the person the opportunity to develop or to maintain a private life. Practice should involve seeking the person’s desired outcomes at the outset and throughout the safeguarding arrangements, and checking whether those desired outcomes have changed or have been achieved.
11. The stages of an enquiry are:
• The Council receives a safeguarding concern.
• The Council gathers information to assess if the alleged abuse or neglect triggers a section 42 enquiry. The Council gathers information from the person making the referral and the adult at risk, unless doing so will put the adult at further risk, as well as other agencies who may have information about the situation. This should happen within 2 days of receipt of the referral.
• When contacted as part of information gathering, the adult may have decided to withhold consent for information sharing for any further adult safeguarding process. The adult safeguarding staff should check that the adult has had a full explanation of what the adult safeguarding procedures involve. A decision on whether to proceed or not should be based on an assessment of whether the conditions to override consent are met, i.e. that it is in the public interest.
• A section 42 enquiry is started. The timescale of the enquiry should be set out within 5 days of receipt of the referral. The aim of the enquiry is to establish facts, ascertain the adult’s views and wishes, assess the risk and the need for protection and protect the adult from abuse and neglect in accordance with the person’s wishes.
• The Council writes a safeguarding plan. The Council will hold either an adult safeguarding plan meeting or a multi-agency adult safeguarding conference meeting if a more formal multi-agency approach is needed. The aim of both meetings is to review the findings of the enquiry report and of any safeguarding plan that has been put in place.
• The Council closes the adult safeguarding enquiry when the safeguarding plan is no longer required.

What happened

12. Mr B is an adult with Asperger’s and oppositional defiant disorder.
13. On 28 May 2019 the Council received a safeguarding referral relating to Mr B from the DWP. Mr B’s mother was his appointee for his benefits. Mr B disagreed with a deduction in his benefits and wanted to cancel his claim for benefits which would leave him without an income. He had threatened to harm himself and others if he did not gain independence to manage his finances. He had threatened to kill himself.
14. The Council decided on 28 June 2019 that the referral met the section 42 threshold for a safeguarding enquiry. It said there was a threat of self-harm, harm to others and financial difficulties.
15. Mr B rang the Council on 5 July 2019 as he had found out via his GP that the Council was carrying out a safeguarding enquiry. Mr B said:
• He did not wish to be part of the safeguarding. He did not want any assessment or any further involvement from social services.
• He withheld permission for enquiries to be undertaken on his behalf.
• He did not believe agencies were acting in his best interests.
• He felt badly let down by social services which had been involved with him since his childhood.
• He was still grieving the loss of his father.
• He did not have any suicidal thoughts and did not require any medical intervention.
• The call from the GP had heightened his anxiety. He did not want further professional interventions.
• He was frustrated and may appear verbally aggressive, but he was never violent.
16. The social worker told him that the next stage was a planning meeting with relevant parties, but Mr B said he did not want to be invited and did not want his mother to be invited.
17. The Council considered the matter on 19 July 2019, but decided to proceed. It said Mr B was a potentially vulnerable adult who had a diagnosis of high functioning Asperger’s. The safeguarding plan was to hold a safeguarding conference with professionals only.
18. Mr B rang the Council on 11 November 2019 because he had found out that the safeguarding meeting was taking place on 13 November 2019 despite the fact that he had told the Council that he did not want or need a safeguarding enquiry. Mr B made several phone calls in the following days to make complaints about the safeguarding enquiry.
19. The Council considered the matter further and decided to cancel the conference and close the enquiry.
20. Mr B made a further complaint on 5 December 2019. He said he should have been informed about the safeguarding conference. He had withheld his consent for the Council to pursue enquiries, but the Council had still spoken to the DWP. He felt that the Council had started this enquiry on the basis that he was at risk of self-harm and this was based purely on third party information.
21. The Council responded to Mr B’s November complaints on 12 December 2019. The Council said:
• It upheld his complaint that the safeguarding enquiry should not have been continued.
• There was no indication that Mr B was at risk of abuse or neglect and therefore this matter should not have progressed to a safeguarding enquiry.
• A more proportionate response would have been to share the concerns with Mr B’s GP and offer Mr B an assessment of his needs under the Care Act.
• The council could have identified earlier on that this referral was not to be progressed as a safeguarding enquiry.
• A safeguarding conference was arranged despite the fact that Mr B did not want any intervention. The Council agreed that the safeguarding conference should not have been arranged.
22. The Council said it had taken the following actions as a result of his complaint:
• It recommended that staff research the impact of specific conditions of people they worked with.
• Discussions would take place at team meetings and all relevant staff would be reminded about the three criteria for a section 42 safeguarding enquiry.
• Communications would be sent to partner agencies to reinforce their role with the safeguarding conference process.
• It would undertake a review of the safeguarding conference administration process.
23. The Council wrote a further letter on 5 February 2020 in response to Mr B’s December complaint. It said it had already upheld his complaint that the Council should not have progressed to a safeguarding enquiry and that the concern received did not indicate that he was at risk of abuse or neglect. It also already upheld his complaint that the safeguarding conference should not have been arranged. It said it made contact with the job centre to gather information as part of the safeguarding concern and did not need the person’s consent to do this.

Analysis

24. Mr B is not satisfied with the Council’s response and has come to the Ombudsman. The Council has largely upheld Mr B’s complaint but Mr B is not satisfied with the remedy the Council has provided. He says the Council should have offered him a financial remedy.
25. I agree with the Council that the section 42 threshold for a safeguarding enquiry was not met and therefore the Council should not have proceeded to an enquiry. To do so was fault.
26. I agree with the Council that a referral to health services would have been a more appropriate response and then the matter could have been closed as a safeguarding referral.
27. In Mr B’s case, the Council seems to have accepted there was no urgent need for intervention in terms of the suicide as it did not progress the referral for several weeks. It decided to progress the matter to an enquiry in June 2019 but it did not identify what other risk of abuse or neglect Mr B was suffering or why the referral met the threshold of a full section 42 enquiry.
28. The Council also failed to put Mr B at the centre of its considerations. It did not speak to him about the referral or enquiry and, even after 5 July 2019, when Mr B contacted the Council and made it clear that he was not at risk of harm and that he did not want to participate in the safeguarding enquiry, the Council did not close the enquiry. This was further fault.
29. Mr B says the Council should not have spoken to the DWP about him and should not have progressed the matter to a safeguarding conference.
30. I am of the view that there was no fault for the Council to speak to the DWP initially. The DWP made the referral and the Council could discuss the referral to enable it to decide whether the referral met the threshold for an enquiry. However, I agree that the Council should have realised earlier on that the threshold for a safeguarding enquiry was not met so it should have closed the matter earlier and not progressed with further contacting the professionals and organising the conference. This was further fault.
31. I have considered the injustice Mr B has suffered as a result of this fault. Mr B says the Council’s decision to start an enquiry and then to continue with it even though it knew Mr B did not want this, has caused him a lot of anxiety and distress. He says he suffered the loss of his father and was not able to grieve because he had the difficulties with the DWP and then the safeguarding enquiry.
32. We expect councils not to expose the public to unnecessary distress as a result of their actions. Such injustice cannot generally be remedied by a payment so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. When we assess distress, we can consider, among other things, whether the complainant is vulnerable and affected by distress more severely than most people.
33. I accept that this enquiry caused Mr B a lot of distress and that he may be more vulnerable because of his Asperger’s and the timing of the events. The Ombudsman generally pays a sum between £100 to £300 for distress and I am of the view that £200 would be an appropriate symbolic amount in this case.
34. The Council has already apologised to Mr B. It has made service improvements to ensure the fault does not happen again so I will not make any further recommendations in that respect.

Agreed action

35. The Council has agreed to pay Mr B £200 to reflect the distress he suffered as a result of the fault.

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Final decision

36. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman