Summary: Mr X complained about the Council’s decision not to proceed with a safeguarding investigation about historical and ongoing abuse and related matters, including disability discrimination and failure to provide support for his autism. We do not find fault with how the Council considered the safeguarding request and we are satisfied with the Council’s approach to Mr X’s care and support needs.

The complaint

1. Mr X complains about:
1. the Council’s refusal to carry out a safeguarding investigation and protect him from the impact of abuse, both historical and ongoing;
2. disability discrimination;
3. the Council’s failure to provide services to meet his care and support needs; and
4. poor complaint handling.
2. He says these matters have caused significant distress and affected his physical and mental health.
3. Mr X is supported by his brother, Mr D, in making this complaint.

Back to top

What I have investigated

4. Mr X’s complaint partly relates to what happened when he was employed at two schools between 2012 and 2016. This was an employment matter and the subject of legal settlement agreements and is therefore outside the scope of the Ombudsman’s jurisdiction. I have not investigated these matters but have referred to, and considered them, insofar as they relate to Mr X’s complaint about the Council’s decisions about safeguarding from 2019 onwards.
5. Mr X says he first requested a safeguarding investigation in 2017, but says this was ignored by the Council. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. Mr X complained about this to the Council in 2017 and upon not upholding this complaint, Mr X was advised of his right to complain to the Ombudsman. He did not do so. Because of this, I see no reason why Mr X could not have complained to us at that time. His complaint about what happened in 2017 is therefore late, and I will not exercise discretion to investigate this.
6. I have investigated Mr X’s requests for a safeguarding enquiry between 2019 and 2020. Mr X made a further request in July 2021. I have not investigated this because the Council says this request is still being looked at.

Back to top

The Ombudsman’s role and powers

7. 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)
8. 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)
9. 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)
10. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
11. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
12. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
13. 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

14. I considered information from Mr X and the Council. I spoke to Mr X. I read the relevant law, guidance and Council policy. Both parties now have an opportunity to comment on my draft decision. I considered comments received before making a final decision.

Back to top

What I found

Relevant law and policy

Adult safeguarding

15. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make (or cause others to make) whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
16. Statutory guidance explains safeguarding duties apply to an adult who:
1. has needs for care and support (whether or not the local authority is meeting any of those needs);
2. is experiencing, or at risk of, abuse or neglect; and
3. 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. (Care and Support Statutory Guidance, paragraph 14.2)
17. The Council has a detailed adult safeguarding policy that reflects the relevant law and guidance

Duty to assess adults with care and support needs

18. Under the Care Act 2014, councils have a duty to assess adults who have a need for care and support. They must then provide a care and support plan setting out the services required to meet any eligible needs identified by the assessment. And if asked to do so, councils must arrange a care package.to meet these needs.

Autism Act 2009 and statutory guidance

19. Under the Autism Act 2009, assessors trained in autism should conduct a Care Act assessment for someone who has autism. If the assessor lacks experience of autism, the assessor should consult someone with the necessary experience. Statutory guidance issued under the Autism Act provides detail on the specialist knowledge and skills assessors should have. This includes being aware of the common difficulties people on the autism spectrum face in dealing with personal, social, educational, and work circumstances.

Equality duty

20. When they have contact with public bodies, the Equality Act 2010 protects people against discrimination because of certain protected characteristics, for example disability.
21. If someone considers that they have been discriminated against, they can make a claim in the county court.

What happened

22. I have set out below a summary of the key events. But it is not meant to show everything that happened.

Relevant background information

23. Between 2012 and 2017, Mr X was previously employed by two schools (School A and School B). He says he suffered abuse during the course of his employment and afterwards. He claims the way he was treated has had a devastating effect on his well-being and future employment prospects.
24. The termination of both employment contracts was the subject of two settlement agreements. The Council was a co-signatory to these agreements.
25. Mr X says he was diagnosed with autism in 2017.

Key events

26. In the summer of 2019, Mr X was offered a teaching position but due to a lack of reference from School A, this job offer was withdrawn. Mr X says this was in breach of the settlement agreement. When he tried to resolve this, he was told the school no longer held the relevant records. Mr X felt this was a continuation of the abuse he had previously suffered during his employment and as a result he was unable to move on with his life until the matter was properly investigated. Mr X thought it should be dealt with under the Council’s adult safeguarding procedures.
27. In August 2019, Mr X contacted the Council to request a safeguarding enquiry about this abuse. He says no action was taken.
28. In November 2019, Mr X, frustrated and disappointed by the Council’s lack of response, made another request for a safeguarding enquiry. The Council also received two separate referrals from Mr X's GP and a Job Centre worker. Both said Mr X may benefit from support due to his autism.
29. The Council says it made several unsuccessful attempts to contact Mr X by phone to discuss this. In early 2020, Mr D told the Council that his brother would welcome support but only when the Council had properly considered the historical and ongoing abuse as part of a full safeguarding enquiry.
30. In response, the Council said it was unable to determine whether the criteria for a safeguarding enquiry had been met on the limited information provided at that time by Mr X. Further requests for Council intervention were made by Mr X’s GP, the police and Mr D in May and June 2020.
31. The Council repeated its request for details of the abuse relevant to a possible safeguarding enquiry. Mr D provided this information in early July 2020. The claimed abuse was in connection with:
1. what happened to Mr X at School A;
2. data breaches by School A resulting in a failure to provide an employment reference;
3. the actions of an occupational health officer who obtained medical records without permission;
4. the actions of an advocacy agency; and
5. the Council’s failure to take any action regarding previous safeguarding requests.
32. Upon receipt of the relevant background information, a safeguarding officer (Officer J) considered whether all three statutory safeguarding criteria had been met (paragraph 16 above).
33. He decided that because a) had been dealt with by a legal settlement agreement, these were not matters that could be further considered as part of a safeguarding enquiry.
34. Officer J was satisfied that Mr X may have needs for care and support and that he could be at risk of abuse in respect of b), c), d) and e).
35. He then went on to determine whether the third criteria had meet met and decided it was not. He concluded that Mr X’s ability to protect himself from the claimed abuse was unaffected by his autism or disabilities. He explained that anyone (regardless of a need for support) could have been similarly affected.
36. Officer J went on to say that the most appropriate way for Mr X to progress with his concerns was via the relevant complaints procedures and/or a legal process. He explained that a safeguarding enquiry was forward looking and protective in nature, rather than with a punitive objective. Instead he encouraged to access specialist services regarding any specialist support associated with his autism.
37. Mr X complained about this decision.
38. The complaint was investigated by a safeguarding manager (the Manager). She discussed the complaint with Mr X. The Council’s final response was sent in February 2021. Mr X says this took far too long and caused him further distress.
39. The Manager partially upheld his complaint because Officer J did not consider whether it was appropriate to use a discretionary power to carry out a safeguarding enquiry regardless of whether the statutory criteria were not met. However, the Council concluded that even if this power had been exercised, it felt this would not have benefitted Mr X because he was already taking the necessary action to resolve his various grievances. The rest of his complaint was not upheld, including the way his numerous requests had been dealt with and the information and support offered to Mr X regarding his autism.
40. This outcome led to a further complaint on the grounds of disability discrimination by both Officer J and the Manager. Another senior officer spoke to Mr X over the phone which led to a further complaint. This was not upheld, but Mr X was advised he could take court action as already proposed by Mr X.
41. Mr X disagreed with the Council’s analysis because the Council had no knowledge of his care and support needs. He argued any comparisons to “any other adults in the population” was direct discrimination. If the Council properly understood his disability, it would be clear that his needs impact on his ability to protect himself from abuse or the risk of it. Mr X felt the Council has failed to consider whether an adult with a significant disability could or could not protect himself as a consequence of those needs.
42. Mr X also referred to a number of factual errors within the Council’s chronology of events. He also complained again about the time taken to deal with the matter
43. Dissatisfied with the Council’s handling of his case over several years, Mr X brought his complaint to the Ombudsman.

Analysis

44. I have considered each of Mr X’s four separate areas of complaint below.

The Council’s refusal to carry out a safeguarding investigation and protect him from the impact of abuse, both historical and ongoing

45. The records I have seen confirm that Mr X made several requests to the Council for a safeguarding enquiry to be carried out. His possible need for support was also raised by him and others, including his GP. For the reasons set out at paragraph 5 above, I have only considered the requests made from 2019.
46. Mr X says Mr D made a request on his behalf in August 2019, but this was ignored. There are no Council records about this and so I do not have evidence to make a finding about this. The first recorded request was in November 2019.
47. A council is not obliged to carry out a safeguarding enquiry just because someone asks for one, it must apply the criteria set out in the Care Act 2014, section 42. The three tests are set out at paragraph 16 above.
48. When the Council received the request in November 2019, it asked Mr X to provide more information about both his care and support needs and the abuse. This was a reasonable request in the circumstances. The records confirm the Council made several requests for this information. This information was first provided by Mr D in July 2020. Once this was received, Officer J promptly carried out an assessment as to whether the statutory criteria were met. While Mr X is unhappy about the length of time this took from his initial request, I do not consider this delay was fault. The records show the Council was proactive in its attempts to engage Mr X in the process prior to July 2020 and was not able to make a decision before then.
49. Upon receiving and considering this information, Officer J decided the third test was not met and explained his reasoning to Mr X. He also explained why much of Mr X’s claimed abuse fell outside the scope of a safeguarding enquiry.
50. I recognise that Mr X strongly disagrees with this decision. However, the law does not allow the Ombudsman to question a council officer’s professional assessment of whether a safeguarding enquiry should be carried out if there is no evidence of maladministration in the way that the decision was made. I cannot call the merits of a properly made decision into question, however strongly others may disagree.
51. In this case, I do not criticise the Council’s decision-making process. I am satisfied that:

• The Council only had limited information about Mr X’s diagnosis and possible care and support needs because little of this nature was provided by Mr X, despite the Council requesting this on many occasions.

• Despite this, I am satisfied Officer J had sufficient information about Mr X and the alleged abuse to reach the decision he did.
• Officer J’s rationale for his decision was properly explained to Mr X.
• Mr X was signposted to appropriate service and support even though a safeguarding enquiry was not carried out.

• The Manager carried out a thorough review of Officer J’s decision during the complaints procedure. The Manager discussed the complaint with him and he was invited to provide any additional relevant information.
• In its February 2021 complaint response, the Council recognised it could have used its discretionary powers, even if the statutory criteria were not met. It decided this would not have affected the outcome for Mr X.

52. In conclusion, I am satisfied the Council properly considered whether it was under a duty to carry out a safeguarding enquiry.

Disability discrimination

53. The evidence I have seen shows the Council accepted Mr X had a disability, even though Mr X refused to participate in a care needs assessment and to engage with the Council’s specialist autism service. I do not consider Mr X was adversely affected by the Council’s limited knowledge of his circumstances. I am satisfied it made several, albeit unsuccessful attempts, to encourage Mr X to engage with the relevant services.
54. Mr X also complained about the conduct of a senior officer during a particular telephone call. The officer involved later explained why he asked Mr X certain questions. He also apologised for any distress unintendedly caused to Mr X.
55. The Ombudsman cannot make a declaration about whether the Council has unlawfully discriminated against Mr X as a disabled person. Only the courts can do that. However, the Ombudsman can find a Council is at fault if it fails to have due regard to its legal duties under the human rights and equalities legislation. I have found no evidence of this.
56. As Mr X’s complaint is whether the Council has discriminated unlawfully against him, it is not unreasonable to expect him to go to court and he has said this is something his is considering.
57. For this reason, I do not consider it is necessary for me to investigate this aspect of Mr X’s complaint further.

The Council’s failure to address his care and support needs

58. Mr X repeatedly told the Council he felt unable to engage with the assessment process or specialist autism services until a full safeguarding enquiry had been carried out.
59. The case records clearly demonstrate the Council contacted Mr X on several occasions to advise him of the services available to him. The Council’s Autism Team wrote to him in February and August 2020 acknowledging his position and him of the requirement to provide information about his current situation and diagnosis of autism. I am satisfied Mr X has been offered a full assessment of his care and support needs, including those related to his autism.
60. It was Mr X’s choice to decline these offers, and for this reason I do not find fault with how the Council acted.

Poor complaint handling

61. Mr X made several separate complaints about the Council’s refusal to carry out a safeguarding enquiry. The Council responded appropriately to these complaints. While these responses did not provide Mr X with the outcome he wanted, this is not evidence of fault. Where there has been a delay, the Council has apologised.
62. There was some considerable delay in the Council’s response to Mr X’s complaint about Officer J’s decision in July 2020. The response was not sent until February 2021. In response to my specific enquiries about this delay, the Council has provided a detailed account of the work it was carrying out during this time to clarify the background to Mr X’s situation. This included discussions between the Manager and Mr X and seeking information from the Council’s human resources department. The Council recognised there was a long delay and has offered Mr X and Mr D an apology for the inconvenience and distress caused.
63. Taking into account the complexity of the case and the Council’s commitment to properly investigating Mr X’s complaint, I do not consider this was so serious as to make a formal finding of fault, particularly as the Council has taken appropriate action by apologising for this. I consider this to be a suitable remedy.

Back to top

Final decision

64. I have not found fault with the actions of the Council in response to Mr X’s request for a safeguarding enquiry and related matters. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman