Summary: The Council considered the late Mr A’s views properly when it undertook a safeguarding investigation.

The complaint

1. Mr X (as I shall call the complainant) complains about the safeguarding investigation which the Council undertook after he raised concerns about the treatment of his late friend Mr A in a care home.

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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. 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

3. I considered the written information provided by Mr X and by the Council. I spoke to Mr X. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

4. 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 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. (section 42, Care Act 2014)
5. 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.
6. The first principle of the Act is that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.

What happened

7. Mr A had lived in a bungalow in the grounds of the care home for several years. He paid an amount to the care provider for bills and some care, although he had been able to wash, dress and care for himself independently until very recently. Another friend (not Mr X) held a lasting power of attorney (LPA) for Mr A’s finances.
8. In January 2020 Mr A developed incontinence and agreed to move into the care home itself to be looked after. At the beginning of February he agreed (in the presence of the friend who held the LPA) to become a permanent resident at the care home and sell his bungalow.
9. Mr X raised concerns with the Council. He said Mr A was not being allowed to return to his bungalow and the care provider had taken away his keys. He thought Mr A would have been able to cope back in the bungalow with help from his friends but the actions of the care provider had destroyed his confidence.

The safeguarding investigation

10. The Council’s safeguarding team responded to Mr X’s concerns. A safeguarding investigator spoke to the care home manager. The care home manager said Mr A had not said he wanted to leave. His solicitor and his friend who had LPA had visited him at the weekend and brought a laptop for him to use as well as arranging a landline in his room.
11. The safeguarding investigator arranged to visit Mr A. She met him on his own. He told her he had a choice of care homes to go to and he chose this one. He said he was feeling very depressed about his loss of independence and not being able to cope alone anymore, but he did not think moving elsewhere would help.
12. The investigator met the care home manager. The manager said Mr A told people different things: for example he wanted to visit his bungalow but told his friends the staff had taken his keys. She said he was free to go there but should be accompanied in case he fell again.
13. The investigator spoke to Mr X. He said Mr A told him the staff ridiculed him and would not take him out. He thought Mr A’s low mood was due to his lack of independence. The investigator told Mr X Mr A had capacity to make his own decision and no-one could either keep him in or make him move if he did not want to do so.
14. The investigator also spoke to another friend of Mr A. The friend said Mr A told her staff had taken his keys and wouldn’t let him leave.
15. The investigator’s notes conclude Mr A had capacity to make his own decisions but was depressed and anxious, which made him speak in dramatic terms about being imprisoned.
16. The investigator also spoke to the friend who had LPA for Mr A and said she had no concerns that Mr A was in any way being held against his will.
17. The safeguarding investigation was closed.
18. Mr A died at the care home from Covid-19 in May.

The complaint

19. Mr X complained to the Council about the investigation. He said the investigator had made up her mind about the matter before she met Mr A and had believed everything the care home manager told her. He said if Mr A had been able to move from the home he would not have died from the outbreak of Covid-19.
20. The Council told Mr X it would not respond to his complaint as he did not have Power of Attorney for Mr A and was not his next of kin.
21. Mr X complained to the Ombudsman.
22. The Council says the investigator was satisfied Mr A had capacity to make decisions about the matters under discission. He did not need an advocate with him. The investigator had concluded Mr A was not being held against his will, and was free to leave.
23. Mr X says Mr A could have returned to his bungalow with help from his friends if he had been encouraged to do so. He says he should have had a friend with him when the investigator met him. He says the safeguarding investigator should have spoken to the two friends who were with Mr A the day before he signed his permanent contract, as they would have told her he wanted to move elsewhere.

Analysis

24. The Council responded to Mr X’s concerns about Mr A, and carried out a proportionate investigation, speaking to all relevant parties. There was no reason for the safeguarding investigator to interview anyone else, despite Mr X’s view to the contrary.
25. Mr A had capacity to make his own decisions and there was no evidence he was held against his will.

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Final decision

26. There was no fault in the actions of the Council.

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Investigator's decision on behalf of the Ombudsman