Summary: Mrs X complained that since 2018 the Council failed to properly consider and respond to safeguarding concerns related to her father. She also complained that since 2020 the Council commissioned care provider failed to report safeguarding issues to the Council, and it altered its carers reports. We found no fault in how the Council considered safeguarding reports related to Mrs X’s father, or how the care agency reported matters to the Council.

The complaint

1. Mrs X complained that since 2018, the Council has failed to properly investigate and respond to multiple safeguarding concerns related to her now deceased father, Mr S. Mrs X said that as a result her father received a consistently compromised level of care, was distressed and felt unsafe.
2. Mrs X wanted her father to have unobstructed access to the care that he needed, and for the safeguarding allegations to be investigated.
3. Additionally, Mrs X complained that since June 2020, a care agency, commissioned by the Council, failed to report safeguarding issues raised by its care workers to the Council. She said it also asked care workers to alter their safeguarding reports and instructed the care workers to incorrectly record their daily observations.
4. Mrs X said that as a result there were times when her father was in danger but neither the care agency nor the Council intervened.
5. Mrs X wanted the care agency to properly record the information in her father’s daily care notes that showed how his life and care quality were impacted by his partner’s behaviour.

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What I have investigated

6. I have investigated Mrs X’s complaint about the Council’s actions from November 2019. The final section of this statement contains my reasons for not investigating the earlier part of the complaint.

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The Ombudsman’s role and powers

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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) 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)
8. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
9. 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

10. I read the information Mrs X sent me, and I spoke to her about the complaint.
11. I considered the evidence the Council and care agency sent in response to my enquiries.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Safeguarding adults

13. The Care Act 2014 places a duty on councils to safeguard adults who:
• have needs for care and support (whether the council is meeting those needs or not);
• are experiencing, or are at risk of, abuse or neglect; and
• because of their care and support needs, cannot protect themselves from either the risk of, or the experience of abuse or neglect.
14. If the Council has reason to suspect an adult is experiencing, or at risk of abuse or neglect, it should complete an enquiry. Enquiries should be proportionate and allow the Council to identify whether it needs to act to prevent or stop abuse and neglect.
15. The adult at risk should always be involved at the beginning of enquiries. The Council follows a person-centred approach which means it encourages adults to make their own decisions and provides them with support and information to empower them to do so.
16. The Council’s procedures state that after it receives a safeguarding referral that meets the criteria set out in paragraph 13, it must make or arrange an enquiry under section 42 of the Care Act 2014. This includes speaking to the adult at risk or a staff member/organisation supporting the adult.
17. The aim of safeguarding is to prevent harm and reduce the risk of abuse or neglect to adults with care and support needs. Its aim is also to do it in a way that supports the individuals in making choices and having control in how they choose to live their lives.
18. Where the Council identifies it needs to take action to safeguard the adult at risk, it completes a safeguarding plan. This sets out what it will do after the enquiry and assigns responsibility for each action.
19. The Council can close a safeguarding enquiry at any time. Depending on the actions it included in the plan, the Council may need continue and review them on an on-going basis, even after it closed the safeguarding enquiries.
20. What happens after enquiries depends on the wishes of the adult and the seriousness of the situation. Any outcomes should make a difference to risk and at the same time satisfy the adult's wish for justice and improve their wellbeing.
21. The adult’s views, wishes and wanted results may change throughout the course of the enquiry. The Council should have a continuing conversation with the adult to ensure, as the process continues, it gains their views and wishes.
22. It is not for the Ombudsman to reinvestigate the safeguarding referral but to consider whether the Council conducted a suitable investigation in line with its safeguarding procedures.

Mental capacity

23. 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.
24. 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 behavior.
25. The Mental Capacity Act 2005 introduced the Lasting Power of Attorney (LPA). A health and welfare LPA is a legal document, which allows people to choose a person(s) to decide for them when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

What happened

26. Mr S and Mrs A were in a relationship and for over 25 years they lived in the house they bought together. Mr S was blind, and he needed help with tasks such as food preparation, getting himself dressed, laundry, managing medication and shopping. Mrs A had diabetes and in 2019 she was diagnosed with dementia; this affected her memory and sometimes led to aggressive behaviours.
27. Mr S’s daughter, Mrs X lived an hour away, but she visited her father weekly to help him with shopping, personal hygiene, and to take him to hospital appointments. She also had Power of Attorney (POA) to manage her father’s finances and later added POA to manage his care and welfare. Mr S had capacity to make his own decisions.
28. Between October 2018 and January 2019 Mr S had a heart attack and pneumonia. After treatment in hospital, he returned home to continue living with Mrs A. Mrs X worried about Mr S and on advice from the Council she organised hot meal deliveries and privately arranged for carers to visit Mr S and Mrs A to help them with domestic tasks.

The first safeguarding investigation

29. In May 2019 Mrs X raised a safeguarding concern with the Council about Mrs A’s fitness to care for Mr S.
30. The Council assessed the information Mrs X provided and considered Mr S was at high risk of being neglected. Because of this, the Council decided to carry out a section 42 enquiry.
31. Mr S’s social worker visited and spoke to him about his needs. The case records show Mr S was aware of the risks in the home and that he had full mental capacity. He said he wanted more help within the home to make him feel safe.
32. Following agreement with Mrs X, the Council completed a safeguarding plan to increase the frequency of carer visits from three to five days a week.
33. The Council reviewed that plan the following month. It completed a visit to Mrs A, and it appeared she was managing and had accepted the additional support for Mr S. It said the neighbour was visiting most days, and Mrs X was monitoring the increase in the care calls.
34. The social worker concluded that with the increased number of carer visits Mr S was in control of his health and care needs. This partially met Mr S’s desired outcome to maintain control over the situation. They also said that Mr S and Mrs A had agreed to consider moving to alternative accommodation.
35. The Council closed the safeguarding case in July 2019.

The second safeguarding investigation

36. The Council received a second safeguarding referral in May 2020. It said Mrs A had hit Mr S on the shoulder. The safeguarding referral said there were live-in carers to provide immediate risk management.
37. The Council decided to carry out a section 42 enquiry and allocated it to a Social Worker 1 to investigate. The following day, Social Worker 1 spoke to the carer who reported the concern. They asked to speak to Mr S, but the carer confirmed he was asleep. The carer said that Mr S did not have an issue with Mrs A’s behaviour. Social Worker 1 agreed to call Mrs X.
38. Social Worker 1 called Mrs X who said she was concerned for Mr S, even though he said he still wanted to live with Mrs A. Social Worker 1 confirmed that she would speak to Mr S alone, and his wishes would guide her decision. Mrs X confirmed that she understood this.
39. Social Worker 1 emailed Mr S’s social worker who confirmed the Council commissioned a male live-in carer for Mr S which intended to reduce the risk presented to Mr S.
40. In June, Social Worker 1 and Mr S’s social worker visited him. Social Worker 1 explained the reason for the safeguarding visit. Mr S said he was aware of Mrs A’s condition and understood it was a progressive condition that would get worse with time. When asked about the risks, Mr S confirmed he was aware of them, but did not want to upset Mrs A. Mr S’s social worker discussed the existing the safeguarding plan with Mr S, which consisted of live-in care. In addition to this Mr S agreed to a best interest meeting to plan how the Council would protect him and Mrs A.
41. The Council completed the best interests meeting in July which related to support the Council was going to provide to Mrs A.
42. The Council completed the enquiry in August. It concluded that Mr S had capacity to decide where he wanted to live, and the Council would protect him and respect his wishes by continuing the live-in care. The Council agreed to review this plan in September.
43. In September the Council closed this enquiry. It noted that any outstanding actions should be picked up as part of a new concern Mrs X raised in June.

Mrs X’s complaint to the Council

44. In June 2020 Mrs X complained and said the Council was not safeguarding and properly caring for her father.
45. In response to the complaint the Council apologised for her poor experience of the service and confirmed that it offered alternative accommodation to Mr S, but he turned it down. The Council said that, in line with the Mental Capacity Act, it considered Mr S had capacity to decide about his care and living arrangements. On his request he went back to his home, and he said he wanted Mrs A to stay with him.
46. Mrs X was not happy with the Council response and said the Council were neglecting Mr S’s needs and allowing him to return to Mrs A where he was at risk of abuse.
47. The Council admitted that it found it difficult to manage Mr S’s and Mrs A’s care needs. However, it said that it always respected Mr S’s views on how and where he wished to be cared for.

Further incident in August 2020

48. In August the live-in carer recorded a verbal altercation between Mr S and Mrs A. The carer noted that he was able to reassure Mr S and deescalate the situation quickly.
49. They logged an incident report and passed it to their manager. The care agency told Mr S’s and Mrs A’s social workers about the incident. It has provided us with copies of communications with both social workers as evidence.
50. Mrs X said the care agency failed to report it as a safeguarding concern to the Council.

The third safeguarding investigation

51. In September Mrs X raised another safeguarding concern and said:
• the care agency was not properly completing daily care notes and reporting Mrs A’s abusive behaviour towards Mr S;
• the care agency altered a carer’s report about an incident;
• Mrs A had been locking herself and Mr S in the bedroom and not allowing the carers to enter, even to administer medication.
52. The Council carried out a section 42 enquiry and Mr S’s social worker spoke to all the people that were involved.
53. Mr S’s social worker spoke to Mrs X on two occasions. During the second conversation at her father’s house Mr S’s social worker was asked to watch a video that was made of Mr S and Mrs A. This triggered a separate safeguarding investigation into Mrs X’s involvement in the matter. Mrs X disputes what happened on the day and says she did not take the video.
54. Mr S’s social worker met with him twice. They recorded Mr S as saying that he thought Mrs A’s behaviour was “bearable”. Mr S’s social worker asked him if he felt threatened by Mrs A and asked whether he wanted them to consider alternative accommodation. They checked this throughout their investigation to see if Mr S’s views changed.
55. Mr S said he wished to remain with Mrs A, and if anything changed, he would tell the carers. He also said he was happy with the male carers and did not want to change to a female carer.
56. Mr S’s social worker spoke to the care agency’s manager and asked about the daily notes and altering of carer reports. The manager explained that the system the care agency uses does not allow for any changes to be made after the notes are inputted by the carers. Mr S’s social worker noted that the manager demonstrated how the system worked, and viewed the records from nine separate days.
57. Mr S’s social worker concluded that Mr S had capacity and that he denied suffering any abuse from Mrs A’s behaviour. They also said that the care agency should remain in place, as Mr S said he was happy with the care he was receiving. The social worker noted “This is the least intrusive response appropriate to the risk presented. To protect Mr S, live in POC is commissioned until 05.11.2020 on tier 2 to support him on daily basis and he is engaging in the support plan effectively”.
58. Mr S’s social worker said that they had seen some records on the care agency’s system, they were up-to-date, and they had found no evidence they had been changed.
59. The investigation recommended training for the live-in carer. It also recommended the care package should continue as the presence of live-in carers minimised any risk to Mr S arising from Mrs A’s behaviours.
60. Additionally, the care agency sent an email to the carers. It reminded them of their duty to properly record what happened during the time they were with Mr S, especially if Mrs A’s behaviour was aggravating him. It also sent a copy of this email to Mrs X

Review of the third safeguarding investigation

61. Whilst the third safeguarding investigation was open, the Council received further information from the carer about Mrs A’s behaviour. The Council considered this and included it in the review it carried out in December 2020.
62. In December the Council’s professionals involved in the case met and agreed:
• The care agency would remain in place; this allowed the Council to monitor any escalation in Mrs A’s behaviour and allowed Mr S to indicate whether his wishes had changed.
• Any risk Mrs A’s behaviour posed to Mr S and the live-in carer was mitigated by the carer’s presence.
63. In December Mr S’s social worker visited the live-in carer and Mr S to get their views about how the safeguarding plan was working. Both the live-in carer and Mr S said they were doing well, and Mr S confirmed his views had not changed from those previously expressed.
64. The notes also showed input from managers, which is in accordance with the Council’s policy for cases that are more complex.
65. The Council did not share this investigation with Mrs X. It said that Mrs X would not have agreed with the outcome of the investigation, therefore it was unlikely she would provide an impartial response.

My findings

66. I have reviewed the Council’s actions between November 2019 and December 2020 and I have found the Council acted without fault in reviewing and responding to Mr S’s safeguarding needs during this time. The Council’s records show that it responded to Mrs X’s concerns about Mrs A appropriately and in line with the guidance. It consulted Mr S, made sure that he was aware of the risks and kept the safeguarding plan under review.
67. The Council’s records show it regularly considered whether Mr S had capacity. Mrs X was understandably concerned Mr S was not asking for the support she thought he needed but the Council considered he was able to make these decisions. There was no fault in how it decided Mr S had capacity to choose what care and support he wanted. It respected his wish to continue living with Mrs A.
68. Case records suggest Mr S was reluctant to separate from Mrs A despite her behaviour, but, as Mr S was assessed as having capacity to make these decisions, the Council had to respect his wishes even if they seemed unwise to Mrs X.

Allegations against the care agency

69. The Council fully investigated the concerns about the care agency’s case records. The care agency confirmed its online system made it impossible to alter any documents. I found no fault in how the Council reached its view the case records had not been tampered with. The Council was not at fault.
70. The care agency recorded the August 2020 incident and provided evidence of its actions. I do not consider that care agency was at fault. On this occasion it did not raise a concern through the Council’s website, but it did tell the Council about what happened.

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Final decision

71. I completed my investigation and I have found no fault in how, between November 2019 and December 2020, the Council considered safeguarding matters relating to Mr S or the care agency acting on behalf of the Council reported safeguarding concerns.

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Parts of the complaint that I did not investigate

72. Mrs X was in contact with the Council in 2018, and if she were not satisfied with its actions at the time she could have complained to the Council and then to us. Mrs X did not provide me with a good reason for the delay in bringing her complaint to us, which is why I decided not to exercise my discretion to investigate Council’s actions prior to November 2019 and therefore that part of the complaint is late.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman