Summary: Miss B complained about the Council’s handling of a safeguarding alert made in respect of her late father. She said it caused him distress and she believed contributed towards his death. It also meant there were limitations on her and her mother’s contact with him in the weeks before he died. She says there was a lack of clarity about the allegations, communication was inadequate and they were excluded from the process. All of this caused her distress. There was fault which caused injustice to Miss B.

The complaint

1. I call the complainant Miss B. She complained about the Council’s handling of a safeguarding alert made in respect of her late father. She said it caused him distress and she believes contributed towards his death. It also meant there were limitations on her and her mother’s contact with him in the weeks before he died. She says there was a lack of clarity about the allegations, communication was inadequate and they were excluded from the process. All of this caused her distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

5. I considered the complaint and documents provided by Miss B and spoke to her I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Miss B and the Council and considered their comments.

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What I found

Summary of the relevant law and guidance

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. Guidance states that the objectives of an adult safeguarding enquiry is to:
• establish facts;
• ascertain the adult’s views and wishes;
• assess the needs of the adult for protection, support and redress and how they might be met;
• protect from the abuse and neglect, in accordance with the wishes of the adult;
• make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect; and,
• enable the adult to achieve resolution and recovery.
8. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
9. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
10. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
11. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.
12. A Lasting Power of Attorney (LPA) is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for 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.
13. The Council has a policy on how it will fulfil its safeguarding duties. This sets down timescales for the various stages of the process and how these will be conducted and managed. There should be a safeguarding lead appointed who will chair and coordinate the enquiry.

What happened

14. Mr B had various conditions which meant he needed care and support. He had been living at home with support from his wife and daughter, Mrs B and Miss B. He was staying at a care home for a period of respite.
15. An allegation was made about Miss B and Mrs B’s treatment of Mr B in October 2019. The Council investigated this under safeguarding procedures. Throughout the period Mr B was in residential care.
16. Mr B died in December.

Analysis

17. Miss B’s complaint was focused on the actions of the particular social worker, Officer Z, with whom she had the most contact. I understand why Miss B approached the complaint in this way, but we investigate the actions of the Council overall. That will include actions by individual officers but I need to consider the complaint in terms of the key events and actions where there might be fault.
18. I am limited in the information I can share with Miss B about Mr B. The Council necessarily had conversations with Mr B and Miss B does not have all the detail about those conversations. I do not consider it would be appropriate to share that detail with her as it was Mr B’s personal information. But I have considered all the information the Council has provided.

The safeguarding investigation

19. The records show the Council made some initial enquiries of relevant parties when it received the allegation. The Council said there was an initial discussion between officers on 16 October. The Council’s records show there was an agreement to proceed to a formal safeguarding investigation but it is not clear from the notes provided when this decision was made. Nor is it clear who the enquiry lead was to be.
20. The Council commented that the enquiry proceeded by way of a ‘process format’ rather than a meeting format. The policy does not make such a distinction and it is clear about the steps to be followed. The Council commented that a multi-agency meeting involving Mr B would have been distressing for him. A multi-agency meeting would normally only involve the relevant professionals so this is not a relevant point.
21. The key point here was that the Council should have had a clear plan of what was to happen next but it did not. There should have been a plan of how the enquiry would proceed, who would do what, with timescales. There should also have been a communication strategy in place.
22. This lack of planning led to confusion. The police were involved and refer to a strategy meeting but the Council do not record it as such. Notes refer to the police as being the lead authority but that was not the case as the Council was the lead.
23. It would be for the Council to decide as part of its consideration of how it was going to investigate a safeguarding allegation what information it could share. It could be the case that information could not be shared if it would jeopardise the investigation.
24. The Council provided some limited information about the allegation at a meeting with Mrs B and Miss B in early November 2019. This confirmed who had made the allegation but not full details.
25. After this meeting there was further telephone contact between Miss B and Officer Z and other officers at the Council over November. Officer Z said she would visit Mrs B and Miss B again but that did not happen. The Council then said it was attempting to arrange appropriate representation for a meeting. Miss B continued to press for a meeting but that did not happen before Mr B died.
26. There was no clear plan for how the safeguarding investigation would be conducted or for how communication with Miss B and Mrs B would be managed. I cannot say that more information could have been shared. But there should have been a plan in place so that Miss B and Mrs B knew as much as they could.

Assessment of capacity

27. The Council has provided detailed information about how it considered Mr B’s capacity in relation to four key issues. These were:
• consent to safeguarding processes;
• accommodation – staying in the residential home longer, either as a respite stay or more permanently;
• Mrs B dealing with his finances; and,
• contact with relatives.
28. The Council’s records show that each of these decisions was thoroughly and properly explored with Mr B. Mr B’s capacity fluctuated and officers had several conversations with him to properly establish his capacity. As I say above capacity is something that has to be considered for each decision that needs to be made. The Council did that.
29. Another mental health care professional, Mr Y, met and assessed Mr B in November 2019. His report was produced nine days after the assessment. This recognised Mr B’s capacity would fluctuate but at the time he saw him he suggested that Mr B did not have capacity to make a decision about where he should live.
30. The Council also considered whether Mr B had capacity to make this decision. This was done over a number of conversations with him during November. At the beginning of November it was his wish to stay at the care home for longer. The Council considered he had capacity to make that decision and it is recorded that Mrs B and Miss B agreed with it.
31. After the visit and assessment by Mr Y, Miss B and Mrs B wrote to the home saying they should not allow anyone to visit him for the next six weeks as he needed a period of time to settle.
32. The Council considered Mr B was able to make a decision about which visitors he should receive so told the care home not to act on Miss B and Mrs B’s wishes. As I say above, the Council properly assessed Mr B’s capacity and there was, therefore, no fault in its approach here.

Visits by family members

33. The Council agreed with Mr B at the beginning of November that he would see any visitors in a communal area of the home.
34. There was no fault in the Council’s actions here. Mr B agreed with the plan and it ensured there was an appropriate degree of protection in place. The Council’s records show that this decision was thoroughly and properly explored with Mr B, and it was clear he wanted to see other family members.
35. There was an incident where another family member visited. She was signed in by an officer as her ‘plus one’. Mrs B and Miss B found out about the visit and considered this had been underhand. The Council explained this was done to facilitate the visit which was Mr B’s wish but to avoid increasing family conflict.
36. Although I recognise the reasons for this action it was not appropriate. It gives the appearance of a lack of transparency.

Mrs B and Miss B’s safeguarding referral

37. In late October Mrs B and Miss B raised a safeguarding alert about another family member. The Council explored this with Mr B but he did not want it pursued. The Council told Miss B of the outcome over the phone in early November.
38. There was no fault here. The Council properly explored this with Mr B and have evidenced the basis for the decision.

Conclusions

39. There was not fault in the actions the Council took to safeguard Mr B or to establish his wishes throughout. But there was fault in the planning of the investigation and in the communication with Miss B and Mrs B. The lack of planning meant the Council did not agree what information could be shared with them. After the first meeting with them there was no other substantive contact with them. The Council recognised in responding to their complaint that it failed to tell them that the safeguarding investigation ended when Mr B died. These failings in communication caused distress to Miss B.

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Agreed action

40. The Council will, within a month this decision, apologise to Miss B and pay her £250 in recognition of the distress the failings caused to her.
41. It will review its procedures to ensure there is proper planning of safeguarding investigations including the need for a communication strategy. It should do this within two months of the decision and inform us of the action taken.

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Final decision

42. There was fault which caused injustice to Miss B.

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Investigator's decision on behalf of the Ombudsman