Summary: The Council delayed dealing with Ms B’s complaints about its actions to safeguard and support her sister and delayed or failed to respond to some of her communications on these points. The Council failed to acknowledge Ms B’s concerns about documents missing in the post, and to refer the potential breach of personal data to the relevant department. We found no fault in the Council’s safeguarding enquiries, or professional decisions it took. To acknowledge the impact of its failures in service the Council will apologise and refer the missing document to the relevant department.

The complaint

1. The complainant, who I will call Ms B, says the Council failed to adequately investigate her concerns about her sister’s welfare, leaving her sister at risk and resulting in hospitalisation. The Council then failed to adequately deal with her complaint about the incident. Ms B did not receive the minutes from a meeting, despite repeated requests. Following the meeting the Council did not follow up and answer Ms B’s concerns. The Council did not initially deal with the complaint through its complaint process; so, the Council did not provide its response to the complaint until over a year after the incident. This has been frustrating for Ms B, and unnecessarily delayed the matter. Ms B says the ongoing stress has impacted on her health and she now needs medication to help her sleep.

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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. 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)
3. 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Ms C gave consent for Ms B to act for her.
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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

7. I considered:
• Information provided by Ms B, including during telephone conversations, and information from the Council in response to my enquiries.
• ‘Adult Safeguarding: Multi-agency policy & procedures for the protection of adults with care & support needs in the West Midlands’. I refer to this as the Council’s safeguarding policy.
• The Care Act 2014 and associated statutory guidance.
• The Mental Capacity Act 2005 and associated statutory guidance.
8. Ms B 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

9. Ms B contacted the Council in August 2019 to raise concerns about her sister’s welfare. Ms B’s sister, Ms C, is an adult who was living with her partner at the time. Ms B had concerns Ms C’s partner was physically and mentally controlling her.
10. Ms B’s contact triggered the Council to consider safeguarding. 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)

What should happen

Adult safeguarding

11. The Council follows the West Midlands Adult Safeguarding Policy & Procedures.
12. When it receives a concern, it should take immediate action to safeguard anyone at immediate risk of harm. The Council should gather information and decide whether it needs to undertake a safeguarding enquiry. It aims to do this in two working days. The Council will speak with the adult concerned, unless it is not safe to do so.
13. If a safeguarding enquiry is needed it could range from a conversation with the individual to a much more formal multi-agency arrangement. The Council will then evaluate the information to decide if any action is needed and will feedback to relevant people. If action is needed the Council will produce a safeguarding plan and keep it under review.
14. The policy says at each stage of the process it is important to give feedback to the person raising the concern and provide appropriate information about what is happening with the referral they made. The extent of the feedback will depend on various things, but at the very least the Council should be able to confirm it has acted on the information and taken it seriously.

Mental Capacity Act

15. 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.
16. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

Safeguarding enquiry

17. Ms B made a telephone safeguarding referral to the Council about concerns for her sister Ms C. Ms B did not hear anything; she called the Council a month later. Five days later Ms B followed up with an e-mail to the Council, setting out her concerns in writing.
18. Nine days later the Council visited Ms C unannounced, and records this as its safeguarding enquiry. The Council had a conversation with Ms C and decided she had mental capacity to contribute to the enquiry. The Council offered some support which Ms C declined. Ms C asked the Council to close the safeguarding enquiry, it did not have any concerns so decided to take no further action.
19. The Council telephoned Ms B a week later to update her on the action taken. The Council explained Ms C has capacity to make her own decisions and wants the safeguarding closed. Ms B was upset and felt the Council should do more. The Council explained it made its decision on the evidence found from the visit, and on Ms C’s decision.
20. The Council spoke with Ms B a week later and offered to jointly visit Ms C with her, Ms B declined this. Ms B asked if Ms C’s GP could go out to visit Ms C. The Council said it would speak with Ms C’s GP to see if the GP would visit Ms C. The Council telephoned the GP a few days later, but it was not Ms C’s current GP. The Council got the current details from Ms C, who told the Council she didn’t want any support. The Council decided to take no further action.
21. The Council decided to close the case on the basis Ms C has capacity to make her own decisions and was declining visits and help and support. There is no evidence the Council updated Ms B accordingly.
22. A few weeks later the Council received a safeguarding referral about Ms C from the NHS as they had taken her into hospital. Ms C was unwell due to alcohol dependency, and there were concerns from her family that the partner she lived with may have been abusing her psychologically and financially. This triggered the Council’s safeguarding process; it did not need to take any urgent action because Ms C was safe and cared for in hospital.
23. The Council met with Ms C a month later; she was still in hospital, and they discussed where she might go when she was ready to leave hospital. This contact seems to have been in relation to care planning rather than as part of the safeguarding investigation.
24. The Council decided it needed to complete a safeguarding enquiry, this was over a month after the safeguarding referral. The Council needed to speak with Ms C to gather additional information and what outcomes she wishes. The Council allocated the case to an officer to complete the Section 42 safeguarding enquiry two months after the referral. The Council took no action and reallocated the case a month later.
25. The Council contacted Ms B and asked for Ms C’s contact details so it could follow up the safeguarding enquiry. The Council apologised for the delay and explained this was because it had to prioritise certain cases during the Covid-19 pandemic. Ms B would not provide the Council with Ms C’s contact details. The Council contacted Ms B again six weeks later, who said she did not know where Ms C was living, and that Ms C did not have a telephone. The Council contacted the Police to assist finding Ms C as a missing person. The Police contacted Ms B who confirmed she did have contact with Ms C and that Ms C is safe and well.
26. The Council decided to close the safeguarding as there was no current risk to Ms C. The Council could not conclude there had been a risk because Ms C had said she was not in an abusive or controlling relationship ay the time of the alleged risk, so the outcome was inconclusive. The Council had offered support which was declined. The Council updated the NHS as the referrer of the safeguarding alert.

Ms B’s complaint to the Council

27. Ms B had a meeting with the Council in March 2020 to discuss her complaints about the social work support for Ms C. The Council agreed to send the notes of the meeting by recorded delivery to Ms B for her to check and return. The Council says it posted the document about a week later. Ms B never received the notes by post.
28. Ms B had repeated contact with the Council about the missing notes. Shortly after the Council posted them England went into a national lockdown because of the Covid-19 pandemic, so the Council officers could not access the building to get the recorded delivery tracking number to trace it. Since the offices reopened the Council cannot find the tracking number.
29. The Council says it e-mailed the document to Ms B over a month after it originally posted it. Ms B says she did not receive this e-mail. Five months later, following Ms B having contacts with various individuals at the Council over this time about the missing documents, Ms B queried what was happening to progress her complaint. The Council said it was waiting for Ms B’s confirmation the notes were correct before it could investigate. The Council had not passed Ms B’s concerns to its complaints team and would now do so.
30. Two months later, after Ms B chased the Council, it confirmed the issues of complaint under investigation. This was ten months after the original meeting to discuss Ms B’s concerns. The Council asked Ms B to confirm the issues to be investigated. Ms B responded to say she had lots of evidence she would submit, the Council said it would await this information and then proceed with its investigation. Ms B received the Council’s formal response to her complaint three months later, over a year after her initial meeting.
31. Ms B received the notes from the March meeting over a year later, when the Council sent a copy with its complaint response.
32. The Council has taken no action about the missing posted document as does not consider it to be a breach of personal data, given there is no evidence to say it has been disclosed to a third party.
33. The Council accepts it failed to respond to some of Ms B’s correspondence or follow through on promises to contact by certain dates. The Council has apologised to Ms B for such errors.

Was there fault causing injustice?

Safeguarding

34. There were delays in the Council’s process, which is fault. But I cannot say that fault caused significant injustice. The outcomes of the 2019 and 2020 safeguarding enquiries was to take no further action. These outcomes would likely be the same had the delays not occurred, and so the situation for Ms B and Ms C would be the same.
35. I recognise Ms B’s disappointment the Council did not get Ms C’s GP to visit her in 2019, as it suggested it might be able to do. The Council made the decision not to pursue this further after a discussion with Ms C. This is a decision the Council was entitled to make, and it did so after considering the available evidence and Ms C’s wishes. Therefore, there is no reason for me to criticise this decision, even though Ms B disagrees with it.
36. The Council deemed Ms C to have capacity, and therefore she was entitled to make decisions that others might consider to be unwise. Such as missing medical appointments and declining support from the Council. The Council visited and spoke with her before deciding to take no further action, which is in accordance with its safeguarding policy.
37. In response to Ms B’s complaint the Council said it should have considered its ‘Self-Neglect Guidance’ and given some thought to how it might have worked with other agencies rather than making decisions in isolation. The Council says it is not confident this action would have resulted in different outcomes, given Ms C went on to decline support when she was in hospital and away from the alleged source of risk. However, if the Council had taken that action, even if the outcome for Ms C was not altered, it would have given reassurance that the Council had pursued all avenues to try and support Ms C.
38. The delays did cause some time, trouble, and frustration to Ms B. In 2019 she contacted the Council several times to prompt it to act. The Council’s acknowledgement in the above paragraph reinforces Ms B’s feelings the Council did not do enough in response to her concerns. The Council should have followed its Self-Neglect Guidance to support Ms C and should have had better communication with Ms B.

Complaint process

39. The complaint process took much longer than it needed to. The Council delayed responding to some of Ms B’s correspondence, causing unnecessary time and trouble for Ms B chasing responses, and added to her frustrations. The Council also missed opportunities to refer the concerns as a formal complaint, which delayed the entire complaints process. I cannot conclude the Council’s actions are the sole reason for Ms B’s stress and why she now requires medication to sleep. But the Council’s actions will certainly have exacerbated the impact on Ms B.

Missing document

40. The Council cannot evidence it posted the minutes of its meeting with Ms B. However, the correspondence from the time shows it is more likely than not the document was posted. The Council is entitled to rely on the Royal Mail postal service, and I cannot hold it responsible for the fact the letter was never delivered to Ms B.
41. I acknowledge the Council could not enter the building to check the tracking number for the document because of the Covid-19 pandemic and national lockdown restrictions. However, it is concerning that once able to re-enter the building the Council cannot locate the tracking number. This brings doubt over whether it posted the documents by recorded delivery, or the less safe route of normal post.
42. The Information Commissioner’s Office website says “A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data. This includes breaches that are the result of both accidental and deliberate causes. It also means that a breach is more than just about losing personal data.”
43. In my view the loss of the documents, even though accidental, could be a personal data breach. The Council does not know whether the documents have been received and opened by a third party. This leaves Ms B and Ms C worrying about the potential their personal information fell into the wrong hands.

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Agreed action

44. To acknowledge the impact on Ms B, and prevent future problems, the Council will:
• Apologise to Ms B for its delays and failures in communication.
• Acknowledge Ms B’s concerns about the missing document, and potential for a breach of Ms C’s personal data.
• Refer the missing document, and therefore potential data breach, to the relevant person or team who deals with personal data breaches. The relevant person/team should consider the issue and decide if the Council needs to take any action. The Council should confirm the outcome to Ms B.
45. The Council should take the agreed actions within one month of this decision, and evidence its compliance to the Ombudsman.

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Final decision

46. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Ms B and prevent future problems.

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Investigator's decision on behalf of the Ombudsman