Cumbria County Council (20 002 146)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 23 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complained the Council prematurely referred a safeguarding concern to the police and did not investigate her complaint properly. Mrs X says this caused her distress and endangered her job. There was no fault in the way the Council handled the safeguarding concern and subsequent investigation. The Council was at fault for not following is own complaint procedure, but this did not cause Mrs X an injustice.

The complaint

  1. Mrs X complained the Council:
    • inaccurately recorded the details of a conversation with her and her husband about her father-in-law;
    • acted prematurely when it referred a safeguarding alert about potential financial abuse to the Police and the Office of the Public Guardian without gathering relevant information; and
    • failed to determine the scope of her complaint therefore failed to investigate it appropriately.
  2. Mrs X said the Council’s actions threatened her job because she was arrested at work. She said she and her husband have experienced distress and periods of depression as a direct result of the Council’s actions.

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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 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. 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 spoke to Mr X and considered his view of the complaint. I also considered Mrs X’s view of the complaint.
  2. We made enquiries of the Council and considered the information it provided. This included safeguarding minutes and complaints correspondence.
  3. I spoke to the Council about Mrs X’s complaint.
  4. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The Care Act 2014 and Care and Support Statutory Guidance 2014

  1. 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 they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (s42, Care Act 2014).
  2. Although the local authority is the lead agency for making enquiries, it may require others to undertake them. The specific circumstances will often determine who the right person is to begin an enquiry.
  3. Where the abuse is perpetrated by someone who has the authority to manage an adult’s money, the relevant body should be informed - for example, the Office of the Public Guardian for deputies or attorneys.
  4. Where a crime is suspected and referred to the police, then the police must lead the criminal investigations, with the local authority’s support where appropriate.

Power of attorney

  1. Power of Attorney is a legal position that allows someone to choose who they would like to make decisions for them if they cannot make them themselves.
  2. If someone is concerned about how the Attorney is carrying out their duties, they can go to the Office of the Public Guardian (OPG). The OPG will then decide if and how to investigate these concerns.

The Council’s complaints procedure

  1. The Council’s complaints procedure for adult social care states it will contact the complainant within 5 working days to discuss their complaint.

What happened

  1. Mr Y was diagnosed with dementia in 2013. He lacks mental capacity. Mr and Mrs X have Power of Attorney for Mr X for finances and property.
  2. Previously, Mr Y lived at home. In 2018, Mr Y was admitted to a care home.
  3. In November 2018, the Council held a financial assessment meeting with Mr and Mrs X to determine whether Mr Y could afford to contribute towards the costs of his care. As part of that assessment, Mr and Mrs X submitted two years of bank statements. The assessor had concerns about the number of transfers out of Mr Y’s account into Mr X’s account. Mr and Mrs X said some of the transfers were to pay Mr X for caring for Mr Y. Others were for bills. Mr X was not registered as a paid carer with HMRC.
  4. The assessor also had concerns about the amount of money Mr Y had left. His income from pensions and attendance allowance was around £2170 a month; however, he only had £2,700 in savings. All other monies had been transferred to Mr X.
  5. The assessor raised a safeguarding alert. Because this was a potential criminal matter, the Council contacted the police to discuss the case. The police agreed the threshold for them to begin an investigation had been reached.
  6. The Council also contacted the OPG because Mr and Mrs X held Power of Attorney for Mr Y. The OPG began its own investigation.
  7. A Council social worker visited Mr Y on 6 December 2018. The case notes record Mr Y strongly denied he had paid Mr X to care for him.
  8. The Council assigned an advocate to Mr Y because he lacked capacity. The advocate visited him on 3 January 2019. The notes from the meeting record Mr Y was adamant Mr X would not take money from him, but if he had, Mr Y would have gifted it to him anyway.
  9. A multi-agency meeting was held in January 2019. The notes record that the police and OPG were continuing their investigations. Mr and Mrs X still held power of attorney but there was now no money left to safeguard. In future, any money Mr Y received would be required to pay for his residential care. Therefore, there would be no possibility of financial safeguarding issues in future.
  10. In December 2019, Mrs X complained to the Council about its actions in relation to the safeguarding investigation. Mrs X said that because there was a police investigation currently underway, she would provide further comments once it had been completed.
  11. A second multi-agency meeting was held in January 2020, following the outcome of the police and OPG investigations.
  12. The police decided that the case did not meet either the evidential requirements nor the public interest tests and therefore, would be taking no further action.
  13. The OPG reported that because there was no mental capacity evidence for the majority of the time period being investigated, it must assume Mr Y had capacity and had therefore made the decision to transfer the money to Mr X. The OPG also decided to take no further action.
  14. Following the conclusions of the police and OPG investigations, Mrs X complained again to the Council about the Council’s “aggressive pursuance” of the safeguarding concern. The Council responded and said it had a duty to make enquiries if it believed an adult was experiencing, or was at, risk of abuse. The Council confirmed the investigation had been concluded.
  15. Mrs X remained unhappy and complained to the Ombudsman.

My findings

  1. The Council has a duty under s42 of the Care Act 2014 to make enquiries if it believes a person is experiencing, or may experience, abuse.
  2. The Council assessor had concerns following a meeting with Mr and Mrs X to assess Mr Y’s finances. As a result, they raised a safeguarding alert. There was no fault in the Council’s actions.
  3. Mrs X complains the assessor misrepresented what was said at that meeting. I was not there and so I cannot know what was said. However, the notes from the safeguarding meeting make it clear the assessor’s concerns were based on a number of factors, including the bank statements and the number of transfers to Mr X’s account. Therefore, on the balance of probabilities the investigation would have gone ahead regardless of what was discussed.
  4. Mr and Mrs X believe the Council should have carried out its own initial investigations before referring the matter to the police.
  5. During my investigation I spoke to the Council. It said that where there was a potential for a crime to have taken place, it had a duty to refer the matter immediately to the police. Not to do so would endanger any future police investigation. After the Council had referred the case to the Police, the Police decided it reached the threshold for investigation. There was no fault in the Council’s actions.
  6. The law says where the abuse is perpetrated by someone who has the authority to manage an adult’s money, the relevant body should be informed. In this case, because Mr and Mrs X had power of attorney, the Council alerted the OPG. This was in line with the law and was not fault.
  7. The police and OPG ultimately decided not to take further action. This does not mean the Council was at fault for making the referrals nor for the timing of the referrals.
  8. Mrs X is also unhappy the Council failed to speak to her about her complaint and says that as a result it failed to investigate it properly.
  9. The Council’s complaints policy says it will speak to complainants within 5 working days of them making the complaint. The Council failed to do so, and this is fault.
  10. However, Mrs X did not experience an injustice. The Council’s complaints response indicates it considered the complaint Mrs X had made in writing. The Council outlined the relevant legislation, explained it had a statutory duty to investigate where abuse was suspected and apologised for any distress this had caused. Although not a detailed response, the Council’s response was adequate. In addition, I have now also investigated Mrs X’s complaint and found no fault with the Council’s actions.

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Final decision

  1. There was no fault in the substantive matters Mrs X complained about. The Council was at fault for not following its own complaints procedure, but this did not cause Mrs X an injustice. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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