Summary: Miss X complained the Council failed to consider using its adult safeguarding powers and make enquiries under section 42 of the Care Act 2014 in relation to her mother, Mrs Y’s problems with a tradesman in 2016/2017. Miss X also complained the Council refused to assess her mother’s care and support needs or her own needs as her mother’s carer. The Council was not at fault in determining Mrs Y was not an adult at risk in 2016/2017 and that her circumstances did not meet the threshold for safeguarding enquiries. However, the Council’s failure to keep a detailed record of its discussion with Mrs Y regarding a care needs assessment and Mrs Y’s decision she did not want an assessment or care and support amounts to fault. As does the Council’s failure to carry out a carer’s assessment for Miss X. This fault has caused Miss X and Mrs Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X complains the Council failed to consider using its adult safeguarding powers and make enquiries under section 42 of the Care Act 2014 in relation to her mother, Mrs Y’s problems with a tradesman in 2016/2017. Miss X states the Council was aware her mother was vulnerable and at risk of abuse and should have made enquiries to determine whether any action was necessary.
2. Miss X also complains the Council has refused to assess her mother’s care and support needs or her own needs as her mother’s carer.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Although the events Miss X complains of occurred in 2016/ 2017, we have decided to investigate her concerns as she was unaware of the safeguarding duties until 2019.
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X and her legal representatives; and
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

7. In 2016 the police notified the Council of the fire at Mrs Y’s home. The report states officers had seen Mrs Y who seemed well and happy and in good spirits despite finding it difficult to get rid of the rubbish from her house. The police report also noted Mrs Y was quite old and relatively vulnerable having previously been the victim of fraud. She resided alone and would potentially require assisted living in the future.
8. A council officer contacted Mrs Y to discuss any possible care need. The Council’s records state Mrs Y was staying in a hotel and her daughter was helping her. She would not know whether she needed any help until she returned home. Mrs Y declined a referral to social service and agreed to contact the Council in the future if she needed support.
9. Mrs Y employed Mr Z to carry out repairs and renovations to her property. The Council had previously provided Mrs Y with Mr Z’s details in relation to clearance work in her garden several years earlier. Although Mrs Y initially engaged Mr Z, Miss X took over dealing with the matter.
10. Miss X states Mr Z’s work was poor, and that he overcharged Mrs Y for work he did not carry out. Miss X states he then began a campaign of harassment against her. In April 2017 Miss X raised concerns about Mr Z’s work and actions with the Council’s trading standards service. Miss X has previously made a complaint to the Ombudsman about the Council’s decision not to take action against Mr Z. This decision does not form part of the current complaint.

Safeguarding complaint

11. In 2019 Miss X made a subject access request to the Council. She asserts that the Council’s records from 2016/2017 show it was, or should have been, aware Mrs Y was vulnerable. The records include:
• an enforcement officer’s notes that Mrs Y was having trouble coping following her husband’s death in 2012;
• Miss X’s contact with the Council in 2017 advising Mrs Y was vulnerable; and
• a police report in 2016, following the fire which describes Mrs Y as being quite old and relatively vulnerable having previously been a victim of fraud. The report also states the fire at her home is believed to have been caused by Mrs Y’s hoarding of property.
12. Miss X asserts this information should have prompted the Council to consider whether to take action under its safeguarding duties. Section 42 of the Care Act 2014 states:

Enquiry by local authority

1) This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)—

(a) has needs for care and support (whether or not the authority is meeting any of those needs),

(b) is experiencing, or is at risk of, abuse or neglect, and

c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.

(2) The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom.

(3) “Abuse” includes financial abuse; and for that purpose “financial abuse” includes—

(a) having money or other property stolen,

(b) being defrauded,

(c) being put under pressure in relation to money or other property, and

(d) having money or other property misused.

13. Miss X also noted the Council’s Safeguarding Adults Board’s Annual Reports in 2016/ 2016 and 2017/2018 referred to cases where the Council’s trading standards service had assisted vulnerable adults and made safeguarding referrals following problems with traders. She questioned why the Council had not offered Mrs Y the same level of support.
14. In response to my enquiries the Council has confirmed it did not consider Mrs Y to be an adult at risk in 2016/ 2017. The Council confirmed it had considered whether Mrs Y was vulnerable and noted she had capacity and there were no indicators to warrant a referral to social care. The Council had contacted Mrs Y following the fire in 2016 to see if she needed help, but Mrs Y had indicated she did not require any support. An officer invited Mrs Y to contact the Council if she changed her mind.
15. The Council also notes it has not received any evidence Mrs Y was the victim of undue pressure from Mr Z to employ him to do the work. It suggests the decision to do so may, with hindsight, have been unwise, but it did not meet the threshold for s42 enquiries. It states trading standards officers have always been aware of the statutory requirements set out in the Safeguarding Act 2010 and more recently the Care Act 2014.
16. In addition, the Council notes all cases turn on their individual facts and it is not possible to extrapolate outcomes from one case to another. It states Mrs Y’s circumstances can be distinguished from the cases in the Annual Reports as Mrs Y was not the victim of an unscrupulous cold caller or of a violent and abusive tradesman.
17. Miss X is concerned the Council has not applied the correct test in relation to its s42 duties. The test is whether there is reasonable cause to suspect a person has need for care and support and whether they are at risk of abuse or neglect. She asserts Mrs Y is clearly vulnerable. She was the victim of fraud in 2015, and the oppressive treatment from Mr Z combined with her mental health conditions meant the Council had a duty to investigate.

Care and support assessments

18. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
19. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
20. An adult with possible care and support needs or a carer may choose to refuse to have an assessment. In these circumstances local authorities do not have to carry out an assessment. Where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority must do so.

What happened here

21. In September 2020 Miss X asked the Council to complete a care needs assessment for Mrs Y and a carer’s assessment for herself. The Council’s records show an officer, Officer 1 contacted Mrs Y to discuss the assessment and the care and support that could be provided. The record of this conversation states Mrs Y said:

“I can wash and dress myself and remember to take my medication…I go to the local shops in my car for my shopping as cannot walk very far. I furniture walk at home and do not have and waking aids…I need rails in my shower and in the toilet, I already have a shower stool. I have bed rails on my bed but no level and a bed lever would be very helpful…can a Stairlift be looked into also, and there are no rails at the front door and it would be helpful if there was…”

22. The Council states Mrs Y did not want care or support but agreed to an Occupational Therapy (OT) assessment.
23. This OT assessment took place on 12 October 2020 and the Council agreed to provide Mrs Y with equipment and aids to assist her.
24. Officer 1 also contacted to Miss X in relation to her carer’s assessment form. Officer 1’s notes record that Miss X stated she had been Mrs Y’s main carer since 2016. Miss X visited Mrs Y once or twice a week and called her every morning, evening, and weekend. Prior to the lockdown Miss X visited Mrs Y three or four times during the week and all weekend. The notes also state Miss X wanted to know what was available for carer’s training and carer’s forums.
25. Miss X has provided a recording of the call which confirms this discussion. Officer 1 told Miss X they would speak to their senior colleague to see what the best way forward would be.
26. Officer 1 then wrote to Miss X directing her to Bromley Well for assistance. Bromley Well is funded by the Council and the Clinical Commissioning Group to provide a range of services to improve and maintain the health and wellbeing of local residents.
27. In January 2021 Miss X contacted the Council to chase up Mrs Y’s care and support plan and her own carer’s assessment. Miss X has also provided a recording of this call. An officer advised Miss X the Council had not assessed Mrs Y’s care and support needs as she had said she was independent. The officer also noted Miss X had discussed the carer’s assessment with Officer 1 who had directed her to Bromley Well for assistance. Miss X did not consider it sufficient to refer her to Bromley Well, but wanted an assessment. Miss X also questioned the decision not to assess Mrs Y’s care and support needs. An officer told Miss X Mrs Y had said she did not need help with her care and had only agreed to an OT assessment. Miss X queried what the Council had told Mrs Y about the assessment and the support available. She suggested Mrs Y had misunderstood or that the Council had not explained the matter properly.
28. The officer confirmed it needed Mrs Y’s consent to carry out a care needs assessment. If Mrs Y now consented to this, the Council would make a referral. In addition, the officer suggested that as Miss X did not live in the borough, she should ask her home authority for an assessment if she needed help.
29. As the officer did not feel they were making progress, they advised Miss X they would pass her call to their manager. Miss X was on hold for over ten minutes then called back and spoke to another officer. She does not consider these calls resolved her queries.
30. Miss X is unhappy with the Council’s response and believes the Council should have issued Mrs Y and herself written statements of their needs and the support available to them.
31. In response to my enquiries the Council states it has not refused to assess Mrs Y. It states it has responded appropriately to Mrs Y’s circumstances at all times and provided appropriate equipment. The Council states Mrs Y was and remains a competent and clearly knowledgeable service user. It notes she has had ongoing involvement with the Council’s OT service and handymen who could have picked up on any concerns about her ability to care for herself. This has not happened, nor has Mrs Y suggested she is lacking support in any way.
32. Miss X notes the handyman service did report they had noticed Mrs Y’s tendency to clutter was getting worse. The Council’s records show that when an officer raised this with Miss X, Miss X confirmed she had no concerns.
33. The Council states it is not responsible for any social care needs Miss X may have as she is resident in another borough. It can consider a carer’s assessment. The Council notes Miss X’s initial form refers to historical matters and confirms that both she and Mrs Y are now generally well. Miss X specifically requested OT equipment for Mrs Y, which the Council has provided.
34. The Council states it telephoned Miss X to discuss her request for information about what support might be available. The Council referred Miss X to Bromley Well for advice and assistance.
35. Miss X maintains the Council should have caried out a care needs assessment for Mrs Y and a carer’s assessment for her. She asserts the Council’s practice of triaging requests for assessments is contrary to the provisions of the Care Act. Miss X does not accept that the Council fully explained to Mrs Y what the assessment involved or the support she could have. She disputes Mrs Y refused an assessment and asserts the Council should have written to Mrs Y following the conversation confirming that it was her intention to refuse an assessment. Miss X states that that having informed the Council Mrs Y did want an assessment, the onus was on the Council to provide this.
36. Irrespective of any confusion or misunderstanding regarding Mrs Y’s care needs assessment, Miss X asserts the Council had a duty to assess her needs as Mrs Y’s carer. She had not declined a carer’s assessment, and states there is no reason why the Council should not carry out the assessment.

Analysis

37. 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 themself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
38. The Council contacted Mrs Y in 2016 following the fire to establish whether she needed any support. Mrs Y confirmed her daughter was assisting her and she did not need support at that stage. When Miss X contacted the Council to raise concerns about Mr Z, she had taken over all dealings with Mr Z and all communication was between Mr Z and Miss X, rather than Mrs Y. The Council considered it was a civil matter and advised her to seek legal advice. Miss X subsequently contacted the police regarding Mr Z and she began proceedings against Mr Z in the civil court.
39. The Council did not consider Mrs Y was an adult at risk in 2016/2017 or that her dealings with Mr Z met the threshold for s42 enquiries. Miss X disagrees with the Council’s view, but there is no evidence of fault in the way it was reached.
40. I do however consider there to be fault in the way the Council considered Miss X’s requests for a care needs assessment and carer’s assessment.
41. The Council is required to carry out an assessment for any adult with an appearance of need for care and support. The Council’s records state Mrs Y declined a care and support assessment as she was independent in her care. This is a decision she is entitled to make, and we would expect the Council to respect her wishes. But we would also expect there to be a clear record of any discussion about the assessment and Mrs Y’s decision that she did not want an assessment or care and support.
42. The failure to keep a detailed record of this discussion and Mrs Y’s decision amounts to fault. Miss X asserts Mrs Y had not understood the support available, or that it had not been properly explained to her. It is unclear what the Council discussed with Mrs Y, but in the absence of an assessment of her needs, the Council would not have been able to fully advise Mrs Y on what support might be available or appropriate.
43. However, a clear contemporaneous record of the Council’s discussion with Mrs Y regarding the assessment would have avoided any doubt about Mrs Y’s understanding or intentions. I do not consider this fault has caused Mrs Y a significant injustice as it was open to Mrs Y or Miss X to make a fresh request for an assessment if they felt there was any confusion.
44. There is no evidence Mrs Y has since expressly requested or consented to a care needs assessment. But given Miss X has raised concerns about Mrs Y’s understanding of the situation, we would expect the Council to contact Mrs Y to confirm her wishes regarding an assessment.
45. As Miss X does not reside in the borough, the Council is not responsible for her care and support. However, as she is Mrs Y’s carer the Council would be required to carry out a carer’s assessment if it appeared she may have any needs for support. There is no suggestion Miss X has declined a carer’s assessment.
46. The duty to carry out a carer’s assessment applies where a carer may have needs for support, currently or in the future, and regardless of the Council’s view of the level of the care’s needs for support. The Council’s failure to carry out a carer’s assessment for Miss X amounts to fault.

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Agreed action

47. The Council has agreed to
• apologise to Mrs Y for any confusion and misunderstanding regarding the care needs assessment; and
• apologise to Miss X for the failure to complete a carer’s assessment.
48. The Council should take his action within one month of the final decision on this complaint.
49. The Council has also agreed to, and has now started, a care needs assessment for Mrs Y, involving Miss X as her carer, and a carer’s assessment for Miss X. The Council should provide Mrs Y and Miss X with a written record of the outcome of these assessments.

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Final decision

50. The Council was not at fault in determining Mrs Y was not an adult at risk in 2016/2017 and that her circumstances did not meet the threshold for safeguarding enquiries. However, the Council’s failure to keep a detailed record of its discussion with Mrs Y regarding a care needs assessment and Mrs Y’s decision she did not want an assessment or care and support amounts to fault. As does the Council’s failure to carry out a carer’s assessment for Miss X. This fault has caused Miss X and Mrs Y an injustice.

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Investigator's decision on behalf of the Ombudsman