Summary: We have not found fault in the Council’s decision to start a safeguarding enquiry after it received a safeguarding referral.

The complaint

1. Mr C complains about the Council’s decision to start a safeguarding enquiry after it received a safeguarding referral relating to his wife, Mrs C.
2. He says:
• The basis of the enquiry was a misunderstanding by an overtired, overworked care worker.
• No evidence was available or produced to substantiate the allegations that Mrs C had been assaulted or that a crime had been committed.
• The manner of the unannounced visit was disproportionate and traumatised him and Mrs C.
• The social worker should not have informed his daughter of the allegation and as a result his relationship with his daughter had been destroyed.

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What I have investigated

3. I have investigated the complaints about the enquiry itself. Paragraph 59 explains why I have not investigated the complaint about the disclosure of the information.

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The Ombudsman’s role and powers

4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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

7. I have discussed the complaint with Mr C and I have considered the information the Council and Mr C have sent and the relevant, law, guidance and the Council’s policies.

What I found

Safeguarding

8. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s safeguarding duties. The Council also has its own policies.
9. The Care Act 2014 section 42 says a safeguarding duty applies where a council has reasonable cause to suspect that 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.
10. If the section 42 threshold is met, the Council must make enquiries.
11. The Guidance says six key principles underpin all adult safeguarding work: empowerment, prevention, proportionality, protection, partnership and accountability.
12. The scope of the enquiry, who leads it and its nature, and how long it takes, will depend on the particular circumstances.
13. The objectives of an enquiry into abuse or neglect are to:
• Establish facts.
• Ascertain the adult’s views and wishes.
• Assess the needs of the adult for protection, support and redress and how they might be met.
• Protect the adult from abuse and neglect, in accordance with the wishes of the adult.
• Make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect.
• Enable the adult to achieve resolution and recovery.
14. Councils can ask another agency to carry out the enquiry, but the council retains overall responsibility for the enquiry.
15. Where criminal activity is suspected, then the early involvement of the police is likely to have benefits in many cases.

What happened

16. Mrs C had a terminal illness and a diagnosis of a mental illness. She lived with Mr C and her adult son.
17. A charity which provides palliative and hospice care supported Mrs C at home.
18. On 10 August 2019, the manager from the charity contacted the local NHS Foundation Trust’s (the Health Service) Matron-on-call. The care workers who supported Mrs C had said that Mr C told them Mrs C became hysterical during a shower and he indicated through action that he slapped her around the face to calm her down. There were no marks or injuries on Mrs C.
19. The Health Service decided that the matter should be referred to the police and to the Council.
20. The Health Service’s referral to the Council’s ‘out of hours’ team said Mr C had ‘smacked his wife around the face today.’
21. Both agencies’ out of hours managers discussed the referral in more detail in the evening.
22. The Health Service’s manager said they had already spoken to the police and the police had agreed to carry out a joint visit with the district nurse. The managers discussed whether the police should attend. The Health Service manager said the risk was too high for the district nurses to visit alone and the social worker should join them.
23. Both managers agreed that it was not proportionate for a visit to take place immediately as it was so late in the night. Mr and Mrs C had probably settled for the night and visiting so late could increase Mrs C’s vulnerability.
24. The outcome of the conversation was:
• The district nurse and the social worker would carry out a joint visit the following day.
• A further discussion would be held the following day before the visit.
25. There was a further strategy discussion the following day, 11 August 2019. The case notes showed a history of domestic abuse or coercive behaviour from Mr C. The Council noted that Mrs C would be more vulnerable to domestic abuse now because of her poor health.
26. The outcome of the discussion was:
• The referral met the criteria for a section 42 enquiry.
• The police would be notified and could potentially attend.
• The Council would organise a respite bed so Mrs C could move there if she wanted to and this would also relieve any carer’s stress.
• If Mrs C wanted to remain at home, a protection plan and care plan would be put in place.
27. Two district nurses, a social worker and a police officer visited Mr and Mrs C later that day. They explained the reason for the visit to Mr C. Mr C acknowledged what had happened but said he did it to calm Mrs C down.
28. They established that Mr C was struggling to support Mrs C which included getting up each night to assist her going to the toilet. They agreed that Mr C needed a break and agreed to try to find a night sitter for Mrs C for that night.
29. The social worker and the police had a brief conversation with Mrs C. Mrs C said she did not want to go into respite care, but agreed to the night sitter.
30. The PC advised Mr C regarding any police action. The PC said the incident would be logged and Mr C would be arrested if there was any further assault.
31. The social worker spoke to Mr and Mrs C’s daughter on the phone and informed her of what happened.
32. My understanding is that the Council found a night sitter, but he was a man and the offer was rejected.
33. The summary of the safeguarding visit said that Mr C had disclosed that he had slapped Mrs C as she had ‘an episode’ and he had to bring her round. Mr C admitted he was not coping and the carers believed that disclosing the incident was a ‘cry for help’.
34. In the following days Mr C wrote letters to the charity, the district nurses and the Council to complain about the visit and said he wanted an apology.
35. Mrs C moved into a hospice on 5 September 2019 and sadly died on 13 September 2019.
36. The Council wrote to Mr C on 6 September 2019. The Council accepted that the visit may have been stressful but pointed out that Mr C admitted that he had smacked Mrs C around the face. The Council said this met the criteria for a safeguarding enquiry and it had a duty to act. It had considered all the factors and decided that a night visit was not appropriate. The conversation with Mrs C was brief, simply to establish she was safe and to offer her respite care elsewhere.
37. Mr C made a formal complaint about the visit to the Council and the NHS Health Service on 31 December 2019.
38. He said:
• A ‘raid’ was carried out on him and his terminally ill wife. The Council had ‘harassed’ a married couple over a trivial matter. The safeguarding team’s actions were ‘abusive, unnecessary, disrespectful and unwelcome’.
• The raid was initiated following an ‘inaccurate report… made by an overtired, overworked care worker…’ He said Mrs C had a panic attack in the bathroom and he had ‘found it necessary to calm [Mrs C] down and restrain her from falling, lest she slip and hurt herself of the shower floor.’
• Mrs C was interviewed in an insensitive and disrespectful manner by the PC and the social worker. He said this was ‘abuse, harassment and persecution’.
• The Council had forgotten the duty of proportionality, being the least intrusive response appropriate to the risks presented.
• He was unfairly and falsely accused of assaulting Mrs C.
39. The Council initially said it had already provided a response to the complaint in September.
40. Mr C said this response was not sufficient and sent his complaint to the Ombudsman in January 2020. The Council then decided to carry out a joint investigation with the Health Service into Mr C’s complaint and said it would respond by 4 March 2020.
41. Mr C continued to write to the Council with further information. He said:
• The initial allegation was made by an ‘overtired and overworked care worker’ from the charity.
• This led to four people turning up at his doorstep with a presumption of guilt aimed at him for 'assaulting’ Mrs C although no evidence had been presented.
• He thought the care worker ‘harboured some sort of a grudge about working late and too many hours.’ He said a colleague of the care worker told him she could be ‘extremely unbalanced at times and seemed unaware of what she was saying, doing or writing.’
42. The Council and the Health Service issued a joint response to Mr C’s complaint on 5 May 2020.
43. The Council said:
• The Council’s view was that the three criteria set out in section 42 were met. Mrs C had care and support needs, she was experiencing or at risk of neglect or abuse and was unable to protect herself as a result of her care and support needs.
• Therefore, the Council had a duty to make enquiries.
• The purpose of the enquiry was to establish with the person what, if any, action was needed and to establish who should take such action.
• It accepted that the visit itself would have caused Mr and Mrs C stress but the response was in line with its policies.
• The visit took into account Mrs C’s needs and the conversation with Mrs C was kept short.

Analysis

44. I have explained to Mr C that I cannot not investigate the actions of the charity, the police or the Health Service as those agencies are outside of the Ombudsman’s jurisdiction. I have only investigated the actions of the Council.
45. Mr C says the Council should not have relied upon the statement of the charity care worker in its decision making as he says this was a malicious statement by an overworked care worker. He also says the threshold for a section 42 enquiry was not met.
46. Those are two slightly separate issues but, as they are linked, I have considered them together.
47. I find no fault in the Council’s reliance on the charity worker’s disclosure. There was no reason to believe the charity worker was not telling the truth. In any event, I note that, when the police and the social worker spoke to Mr C on 11 August 2019, they said he admitted the allegation.
48. I also find no fault in the Council’s decision to make enquiries under section 42. The Council took into consideration the referral it had received and the historic concerns about domestic abuse/coercion. The Council applied the correct test as set out in the law and guidance and its own policies.
49. The Council concluded that this met the section 42 threshold and it therefore had a duty to make enquiries. It was the Council’s role to weigh up the information it had, to apply the correct law and guidance to assess the risk. The Ombudsman cannot question the merit of a decision if there is no fault in the way the Council has reached that decision.
50. I have also considered whether there was fault in the way the Council carried out its enquiries. I have paid attention to the different principles which should underpin a safeguarding enquiry. These include proportionality but also protection and prevention.
51. I note that the Council received the safeguarding referral late at night. The manager decided not to visit Mr and Mrs C that evening, but to wait until the morning. The notes show the Council considered the options and balanced the possible need for immediate protection with the distress a night-time visit may cause and did so on the basis of proportionality.
52. There was no fault in the Council’s decision to carry out a visit to Mrs C the following day. Any basic enquiry would require a conversation with Mrs C to establish whether she was safe and to find out what she wanted to do. I also accept the Council’s decision that this visit had to be unannounced in light of the allegation and the history.
53. In terms of the attendance of the agencies, it was the police’s decision to attend, presumably because the allegation related to a possible crime. Any visit would, at a minimum, involve the social worker as they would assess the risk and oversee the enquiry.
54. The decision on 10 August 2019 was that it was not appropriate for the nurses to attend on their own and therefore the social worker would attend with the nurses. It is not entirely clear why the nurses and the social worker had to attend together, if the police attended and it may have been good practice to consider this.
55. It is difficult for me to comment on how the social worker spoke to Mrs C, but I note the conversation with Mrs C was very brief.
56. The CASS Guidance says the outcome of an enquiry should reflect the adult’s wishes wherever possible. I note the Council offered Mrs C respite care, but she did not want this. The Council offered night-time carer and Mrs C accepted this offer.
57. The Council then agreed to take no further action in relation to the referral as it was of the view that this was more a ‘cry for help’ from Mr C. That was an appropriate response to the referral that had been made.

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Final decision

58. I have not found fault in the Council’s actions and have closed the investigation.

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Parts of the complaint that I did not investigate

59. The Information Commissioner’s Office (ICO) investigates complaints about the disclosure of information. It is better placed to investigate Mr C’s complaint about the social worker informing his daughter about the allegation and I have therefore not investigated this complaint further.

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Investigator's decision on behalf of the Ombudsman