Summary: Ms Y complains the Council breached Mr X’s rights to a Private and Family Life and his right not to be discriminated against in the way it carried out a safeguarding investigation, with him as the alleged perpetrator. The Council’s failure to inform Mr X of, and involve him in, the safeguarding investigation amounts to fault. As does the failure to offer to refer Mr X for advocacy when the allegations against him were made or when the Council began its safeguarding investigation. This fault has caused Mr X an injustice.

The complaint

1. Mr X’s advocate, Ms Y complains on his behalf that the Council breached Mr X’s rights to a Private and Family Life and his right not to be discriminated against in the way it carried out a safeguarding investigation, with him as the alleged perpetrator. In particular, Ms Y complains the Council:

• did not follow proper process or procedure;
• did not explain the safeguarding process to Mr X or give him the opportunity to respond to the allegations;
• did not provide details of the safeguarding investigation findings or outcomes;
• prevented Mr X from working for a charity for an unnecessarily extended period;
• did not refer Mr X for advocacy services until after the investigation was complete;
• wrongly referred Mr X to the Disclosure and Barring Service (DBS) to consider including him on the Barring list;
• prevented Mr X from having contact with Mr Z; and
• wrongly included Mr X’s friend in the safeguarding investigation.

2. Ms Y feels the Council’s treatment of Mr X has been unfair, and actions against him were possible because of his learning disabilities. She asserts the Council has failed in its Public Sector Equality duty, to protect him as a vulnerable adult.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms Y;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Safeguarding

6. 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)
7. The council should generally inform the alleged perpetrator of allegations made against them and give them an opportunity to give their side of the events before any decision is made.
8. The Council’s practice guidance states:

“The general principle is that the person/organisation that is alleged to be responsible for abuse and/or neglect should be provided with sufficient information to enable them to understand the concerns and enable them to respond with their account of events, so as to inform an assessment of risk and the actions required.”

9. The practice guidance also confirms the person alleged to be responsible for the abuse or neglect would not normally be provided with a copy of the safeguarding report, nor would they attend a planning or outcome meeting. The focus would be on the safety and welfare of the person at risk.

What happened here

10. In April 2019 the police investigated an allegation Mr X had sexually assaulted Mr Z. The police interviewed Mr X and released him on bail. It was a condition of Mr X‘s bail that he did not have unsupervised contact with other vulnerable adults.
11. Mr X had attended group sessions run by a charity, Company 1, that works with people with learning difficulties, for many years as a participant, volunteer, and employee. Mr X was unable to attend these sessions, in any capacity, while the police investigation was ongoing. Mr X also received 12 hours support each week from an outreach service, which he continued to access.
12. The police informed Mr X in June 2019 it had completed its investigation and would not be taking any further action. The police confirmed Mr X’s bail conditions no longer stood, but suggested Mr X did not have unsupervised contact with Mr Z.
13. Following the conclusion of the police investigation, the Council began a safeguarding investigation. Mr X could not return to the sessions with Company 1 while the Council’s investigation was ongoing. The Council completed its investigation in early August 2019 and concluded it was likely some form of sexual abuse had occurred. An officer then met with Mr X and a support worker from the outreach service to discuss the investigation and outcomes. The notes of the meeting state the officer advised Mr X it could not stop his contact with Mr Z, but that at the moment Mr Z did not want contact and had requested that any future contact with Mr X was supervised.
14. The officer also told Mr X they would send the investigation conclusions to the DBS to consider whether Mr X would be barred from working with vulnerable people. The notes state the officer also told Mr X it would be Company 1’s responsibility to decide if and how he would be introduced back to the service.
15. Company 1 confirmed it would consider how it could support Mr X as one of its members and a vulnerable adult whilst also safeguarding its other members. It also intended to obtain advice on Mr X’s employment once it received the DBS’ decision. Company 1 confirmed that until it had the DBS decision Mr X would remain suspended.
16. With Mr X’s permission, the Council also arranged for a referral for an advocate. The Council advised the advocate Mr X was a vulnerable adult and there was a concern he may not fully understand the process to date or the outcomes of the investigation.
17. In September 2019 at the advocate’s request, the Council provided Mr X with written information about the outcome of the safeguarding investigation. Ms Y then took over as Mr X’s advocate. Ms Y contacted the Council in January 2020 to raise concerns about the safeguarding investigation and the ban on Mr X attending any sessions with Company 1. Mr X maintained the Council rather than Company 1 had told him he could not use Company 1’s services. Ms Y asked the Council to clarify whether it had instructed Company 1 to tell Mr X he could not use its services. The Council confirmed it had notified Company 1 of the referral to the DBS and advised it was up to the organisation to decide whether Mr X could attend, in what capacity, and how to safeguard other vulnerable adults. The Council confirmed it could not force a service to suspend a member of staff or prevent attendance.
18. The DBS concluded its investigation in March 2020 and in May 2020 Company 1 advised Ms Y that Mr X could attend its groups as a volunteer when the COVID 19 lockdown ended. He would be supervised on his return and would attend different sessions to Mr Z.
19. In June 2020 Ms Y made a formal complaint on behalf of Mr X. Ms Y asserted Mr X was at a substantial disadvantage during the Council’s safeguarding investigation because of his disabilities. The Council did not refer Mr X for independent advocacy in April 2019 when it was informed of the allegations or in July 2019 when it decided there would be a safeguarding investigation. Nor did it explain to Mr X it was carrying out a safeguarding investigation, involve him in the process or invite him to any meetings. Ms X complained the Council had not provided a record of any findings about the concerns the Council had about Mr X or an outcomes report.
20. She stated the Council’s decisions and actions had had a devastating and ongoing impact on Mr X’s life. Ms Y was concerned that Mr X’s suspension from Company 1 was not recorded in the outcomes or actions of the safeguarding investigation but was wrongly included as an action on Mr Z’s protection plan.
21. Ms Y also complained about the Council’s referral to the DBS. The DBS only deals with barring people from ‘regulated activities’ or when someone has a caution or conviction from the police. Neither of which applied to Mr X. She asserted the referral had therefore unnecessarily delayed Mr X’s return to work with Company 1.
22. In addition, Ms Y complained the Council had interfered in Mr X’s relationships and friendships. Mr X was concerned the police had visited his friend, Mr B to confirm the nature of their friendship. The Council then included Mr B in the safeguarding investigation when there were no substantiated concerns.
23. Mr X considered the Council’s actions against him were neither reasonable nor proportionate.
24. In its response the Council disputed it had breached Mr X’s rights, treated him unfairly or failed to protect him as a vulnerable adult. The Council stated it was part of its duties under the Care Act to make enquiries where it feels there is a risk of harm. Although the police did not feel there was sufficient evidence to meet the threshold of beyond reasonable doubt, the Council believed there were sufficient concerns for it to conduct its own investigation.
25. The Council disputed that it had not explained the safeguarding process to Mr X or involved him in the process. It noted a social worker had visited Mr X in late July 2019 to discuss the support that could be offered, including a referral for advocacy. In addition, an officer had met with Mr X in August 2020 to explain the process and outcome. It had also provided information about the safeguarding process and outcome of the investigation in an easy read format in September 2019.
26. The Council also reiterated that while it could make recommendations, it was not in a position to stop any employer allowing an employee to return to work. It noted Company 1 had already confirmed to Ms Y that it, rather than the Council had made the decision to suspend Mr X and the arrangements for his return to work in line with its policies.
27. In relation to the DBS referral the Council stated it had followed DBS guidelines which state the Council should consider whether the person may pose a risk to a vulnerable adult and who is or may in the future work in a regulated activity with vulnerable adults or children. The Council was aware Mr X was in paid employment with vulnerable adults and considered it had sufficient concerns to make a referral.
28. The Council considered its response had been proportionate and in accordance with both safeguarding procedures and the Care Act. It stated it was Mr Z’s choice not to see Mr X and that he had been consistent in this view and the allegations he had made.
29. As Ms Y and Mr X were not satisfied by the Council’s response, they have asked the Ombudsman to investigate their complaint. They assert the Council did not follow proper process and procedure in carrying out the safeguarding investigation and left Mr X at a substantial disadvantage. Mr X is not allowed to see Mr Z and was banned from Company 1 from June 2019 to April 2020. Mr X believes Mr Z is being pressurised into saying he does not want to see him. He states Company 1 had been his life for the past 20 years and without it he was isolated and only saw his support workers. Although Mr X was paid in full while he was unable to work for Company 1, he states he lost earnings as he would normally have taken on additional shifts to earn extra money.
30. In response to my enquiries the Council states it considered how to support Mr X as a vulnerable adult during the police investigation and after it had concluded. The Council states it was not appropriate for Mr X to attend its strategy meetings in May and July 2019, but it did discuss his needs during these meetings.
31. The notes of the meeting to May 2019 record that a social worker contacted the outreach service following the allegation. The service confirmed Mr X was aware of the serious nature of the allegation and had not indicated he needed any further support. The outreach service subsequently requested a review of Mr X’s care needs in light of the allegation and bail conditions.
32. There was a delay in allocating Mr X a social worker, but a review took place in late July 2019, following which the Council made a referral for an advocate.
33. The Council notes an officer met with Mr X and a support worker from the outreach service in August 2019 to discuss the allegations and outcomes of the police and the safeguarding investigations in detail. It states Mr X was given the opportunity to respond to the allegations and protection measures in place. The Council states the officer told Mr X they would be happy to explain the investigation and outcomes to an advocate so that they could support Mr X.
34. In relation to the inclusion of Mr B in the safeguarding investigation, the Council states it has a duty to protect others who may be at risk. Mr X’s bail conditions prevented Mr X from having contact with other vulnerable adults, and Mr B was considered a vulnerable adult. Once the bail conditions were lifted Mr B was free to have contact with Mr X.
35. The Council has also reiterated that its decision to make a referral to the DBS was inline with the DBS guidelines. Once the police investigation was complete, Mr X could potentially have applied for other work with vulnerable adults. The DBS investigation took several months to complete, but this was beyond the Council’s control.

Analysis

36. It is clear from the documentation available that there have been failings in the way the Council responded to the safeguarding report. Given that Mr X is a vulnerable adult, I would have expected the Council to ensure he received support and access to an advocate throughout the safeguarding process.
37. I recognise it would not have been appropriate for the Council to contact Mr X to discuss the allegations during the police investigation. But I consider the Council should have contacted Mr X directly to confirm whether he needed additional support and to offer to refer Mr X to an advocate. It was not sufficient to discuss the matter with the outreach service, and to rely on them to support Mr X. The outreach service is not an advocacy service and there is no record of the Council discussing an advocacy referral with the outreach service in April 2019.
38. The Council’s failure to refer Mr X to an advocate until August 2019, by which time it had completed its safeguarding investigation, amounts to fault.
39. In terms of natural justice, it is important to provide an opportunity for the alleged perpetrator to respond to the allegations/ explain their actions. Mr X was clearly aware of and involved in the police investigation of the allegations against him. He was interviewed by the police and given the opportunity to respond to the allegations. However, the Council did not notify him when it began its own safeguarding investigation or given him an opportunity to respond. Mr X was only aware of the Council’s safeguarding investigation through his contact with Company 1. The Council did not contact Mr X in relation allegations against him during the safeguarding investigation.
40. A social worker visited Mr X in July 2019 to review his care and support needs. The social worker told Mr B’s parents, who Mr X had asked to be present, that the meeting was not to discuss the safeguarding investigation, but solely to review Mr X’s needs.
41. When an officer visited Mr X in August 2019, it was not to obtain Mr X’s comments on the allegations or to discuss what would happen as part of the investigation. The Council had already completed its investigation and the officer visited Mr X to inform him of the outcome. The Council’s failure to involve Mr X in its investigation amounts to fault. As does the Council’s failure to provide Mr X with written confirmation of the outcome at the conclusion of the investigation.
42. While it may not be appropriate to provide Mr X with a copy of the safeguarding report, we would expect the Council to provide Mr X with written confirmation of the outcome of the investigation. Particularly, as the Council has determined the allegations are substantiated, and the outcomes will have a direct impact on him. The Council only provided Mr X with easy read information about the outcome of the safeguarding investigation following the advocate’s request in September 2019.
43. The Council cannot prevent Mr X having contact with Mr Z, but as Mr Z has told the Council he does not want contact with Mr X it is appropriate for the Council to inform Mr X of this.
44. Ms Y asserts the Council wrongly direct Company 1 to suspend Mr X’s involvement with its service. However, the documentation shows it was Company 1’s decision to suspend Mr X’s attendance at groups and his employment. Company 1 confirmed it had followed its HR procedures during the whole suspension period.
45. Mr X was unable to attend groups or recommence his work with Company 1 for a prolonged period while the DBS completed its investigation. Any delays in the DBS investigation are unfortunate but are not due to fault on the part of the Council.
46. The Council and Ms Y have differing views on the appropriateness of the referral to the DBS. The DBS guidance on the referral duty and power of local authorities confirms the Council has the power to refer a person to the DBS where the following two conditions are met:
• Condition 1: the organisation thinks a person has either harmed or poses a risk of harm to a child or vulnerable adult; satisfied the harm test; or received a caution or conviction for a relevant offence.
• Condition 2: the organisation thinks that the person they are referring is or has been, or might in the future be working in regulated activity; and the DBS may consider it appropriate for the person to be included in a barred list.
47. The decision to make the referral is a matter of the officers’ professional judgement. Although Ms Y disagrees with it, there is no evidence of fault in the way it was taken. The Council’s safeguarding investigation had concluded the allegations against Mr X were substantiated. Mr X was in paid employment with vulnerable adults and although he was not currently working in regulated activities, the Council considered he could potentially have applied for other work with vulnerable adults. It therefore considered Mr X met the two conditions for a referral.
48. Having identified fault, I must consider whether this has caused Mr X an injustice. The nature of the allegations against Mr X will inevitably have caused him upset and concern. The failure to involve Mr X in the safeguarding investigation or give him the opportunity to respond to the allegations, with the support of an advocate will have exacerbated this and caused him additional uncertainty and distress.
49. I cannot speculate on whether the outcome of the safeguarding investigation would have been different had Mr X been given the opportunity to give his own account of events. It is clear the Council was aware Mr X had denied the allegations when interviewed by the police.

Agreed action

50. The Council has agreed to apologise to Mr X for the failure to inform him of and involve him in the safeguarding investigation; and the failure to offer a referral to an advocate when the allegations against him were made or when the Council began its safeguarding investigation.
51. The Council has also agreed to pay Mr X £500 in recognition of the uncertainty and distress the lost opportunity to be supported by an advocate and involved in the safeguarding investigation have caused.
52. The Council should take this action within one month of the final decision on this complaint.
53. In addition, the Council has agreed to provide reminders/training to ensure that officers are aware of the need to:
• involve the alleged perpetrator in safeguarding investigations, by giving them sufficient information to enable them to understand the concerns and the opportunity to respond with their account of events before reaching any conclusions; and
• offer advocacy support to any vulnerable adults, whether the alleged perpetrator or victim, at the outset of any safeguarding investigation.
54. The Council should take this action within two months of the final decision on this complaint.

Back to top

Final decision

55. The Council’s failure to inform Mr X of and involve him in the safeguarding investigation amounts to fault. As does the failure to offer to refer Mr X for advocacy when the allegations against him were made or when the Council began its safeguarding investigation. This fault has caused Mr X an injustice.

Back to top

Parts of the complaint that I did not investigate

56. I have not investigated Ms Y’s concerns that the Council has provided an incomplete response to her subject access request. This is an issue for the Information Commissioner’s Office rather than the Ombudsman.

Back to top

Investigator's decision on behalf of the Ombudsman