Summary: Miss X complains about the Council’s failure to safeguard her mother. She says the Council failed to act on referrals from the police, did not complete a mental capacity assessment properly, and failed to deal with her concerns about a social worker in a timely manner. We fault with the Council for failing to take appropriate action to safeguard her mother. We do not find fault with how the Council completed the mental capacity assessment or with its handling of the concerns about the social worker. We have made some recommendations.

The complaint

1. Miss X complains about the Council’s failure to safeguard her mother. She says the Council failed to act on referrals from the police and the cognitive impairment and dementia service. She also complains:
• the Council did not complete a mental capacity assessment for her mother properly; and
• the Council failed to deal with her concerns about her mother’s social worker in a timely manner.

Miss X says the Council’s actions have caused her distress and upset.

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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. 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 spoke with Miss X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent two draft decisions to Miss X and the Council and considered their comments.

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What I found

Legislation and guidance

8. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision. There are five key principles in the Act.
9. There is a two-stage functional test of capacity set out in the Act:
• Stage 1 – is there an impairment of, or disturbance, in the functioning of a person’s mind or brain? If so,
• Stage 2 – is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
10. The Act says a person is unable to make their own decision if they cannot do one or more of the following four things:
• understand information given to them;
• retain that information long enough to be able to make the decision;
• weigh up the information available to make the decision;
• communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking or squeezing a hand
11. The Mental Capacity Act Code of Practice sets out further guidance and good practice. It notes that councils should ensure they respect the first principle of assuming capacity. However, it is important to carry out an assessment when a person’s capacity is in doubt. (paragraph 4.34)
12. The code highlights practical steps that should be taken when assessing capacity, including:
• Consideration of whether family and close friends can provide valuable background information, such as the person’s past behaviour and abilities.
• Explaining to the person all the information relevant to the decision. The explanation must be in the most appropriate and effective form of communication for that person.
• Checking the person’s understanding after a few minutes. The person should be able to give a rough explanation of the information that was explained.
• Avoid questions that need only a yes or no answer. However, there may be no alternative in cases where there are major communication difficulties. In these cases, check the response by asking again in a different way.

What happened

13. Miss X’s mother, Mrs Y, had dementia. Mrs Y had lived alone.
14. Between April and June 2018, the Council received three referrals from the police about Mrs Y. The referrals noted the following:
• Mrs Y had recently been diagnosed with dementia and there had been an alleged theft at her home.
• Mrs Y had been allowing strangers into the home and money was going missing.
• Miss X had contacted the police to report that she heard a male voice in her mother’s house from the CCTV she had installed. Miss X believed Mrs Y’s handbag had been moved and there was no cash in the bag. The referral highlighted Mrs Y had probably been subjected to multiple unknown people getting into her house and potentially stealing money. Notes need for more support for Mrs Y.
15. The Council’s records showed a social worker tried several times to contact Mrs Y following the April referral. The case record noted Mrs Y put the phone down on the social worker each time. There is no evidence the Council took any further action.
16. Following the May referral, the records showed the Council had contacted Miss X to discuss the referral. It was noted that Miss X had declined the offer of support but would consider it later. There is no evidence the Council contacted Mrs Y to discuss matters with her.
17. In response to the June referral, the Council contacted Mrs Y and offered her an assessment, which she declined. The Council also spoke with Miss X who also declined an assessment. Miss X said the Council did not contact her in June to ask about an assessment.
18. In October 2018, Miss X witnessed via the CCTV cameras she had installed in Mrs Y’s house that Mrs Y had been a victim of a sexual assault. Following this incident, the police made a referral to the Council.
19. In December 2018, the police asked the Council to complete a mental capacity assessment to decide if Mrs Y had the capacity to consent to any form of sexual activity. Mrs Y’s social worker completed the assessment with an independent advocate present. Miss X was not present during the assessment.
20. The completed assessment detailed the following:
• Mrs Y’s demeanour and presentation during the assessment.
• The questions asked by the social worker, including some yes/no questions.
• Mrs Y’s actions and answers in response to questions asked.
• The social worker’s use of visual aids and objects when asking questions.
• The social worker rephrasing questions when Mrs Y did not appear to understand the original question.
• The use of breaks during the assessment.
• The social worker asking the same questions at different times of the day.
21. Following the assessment, the social worker noted her professional judgement that Mrs Y did not have the mental capacity to consent to any form of sexual activity.
22. In April 2019, the Council wrote to Miss X to confirm it had decided to refer Mrs Y’s social worker to the health and care professions council (HCPC). At the time of the referral, the HCPC was the body which regulated social workers. In December 2019, this responsibility was transferred to Social Work England.
23. Miss X provided evidence to show the Council did not make the referral until May 2019. The Council told Miss X the delay was due to the referral not being straightforward and that the Council had to gather all the necessary evidence to support the referral. The Council also said the referral was checked and amended before it was submitted.
24. The records showed the Council made the referral due to concerns about the social worker’s code of conduct as they had claimed they had attended a meeting when there was evidence they had not. Social work England opened an investigation into the social worker.
25. In February 2021, Miss X made a complaint about the Council’s failure to safeguard Mrs Y. Miss X also complained about the Council’s response to her concerns about the social worker.
26. The Council responded to the complaint in March 2021. The Council accepted fault for:
• Not considering the police referrals under its adults safeguarding policy.
• For only looking at the referrals in isolation.
• Not linking the escalating issues and looking further into the issues raised by the referrals.
27. The Council also accepted it could have visited Mrs Y at home, and that it had failed to assess whether Mrs Y had capacity to refuse support when she declined the assessment offered. The Council said it should also have assessed Mrs Y’s capacity to find out whether she was aware of the risks and dangers of allowing strangers into her home.
28. In May 2021, Social Work England completed its hearing of the allegations against the social worker. The panel found the charges proved and issued a removal order. This meant the social worker was de-registered and could not work as a social worker.
29. Miss X told us she had raised concerns about the social worker on the first day they were assigned to the case.

Analysis

Council failed to act on referrals from police

30. It is recognised the Council has already accepted fault for not taking further action after receiving the referrals from the police. It has acknowledged it could have looked further into the issues and should have assessed Mrs Y capacity. Therefore, the Council was at fault for failing to take appropriate safeguarding action when it received the police referrals.
31. I consider the fault above caused Miss X distress and uncertainty. This is because she is left not knowing whether the alleged sexual assault could have been prevented if the Council had taken further action to safeguard Mrs Y.

Mental capacity assessment

32. The evidence shows the social worker completed a mental capacity assessment for Mrs Y. The record of the assessment is detailed and there is evidence of good practice, such as the social working asking questions in different ways, asking questions at different times in the day, and the use of visual aids and objects to simplify communication with Mrs Y. This is in line with the code of practice.
33. I note the social worker did ask some yes/no questions. However, the code of practice notes that sometimes this is unavoidable if there are severe communication difficulties. The assessment shows that Mrs Y was struggling to answer the questions in a coherent manner. Therefore, I am satisfied it was reasonable, on balance, for the social worker to have asked yes/no questions in the circumstances.
34. Following their assessment, the social worker determined that, in their professional judgement, Mrs Y lacked capacity to consent to any form of sexual activity.
35. It was for the social worker to make a professional judgement, on the balance of probabilities, whether Mrs Y had capacity to consent. As there is no evidence the way the social worker completed the mental capacity was flawed, I cannot find fault with the assessment.

Council’s response to Miss X’s concerns about the social worker

36. Miss X said she raised concerns about the social worker from the first day they were assigned to the case. The Council’s records do not show any contact from Miss X to the Council raising concerns about the social worker. However, on balance, I am satisfied Miss X likely did raise concerns about the social worker.
37. The Council referred the social worker to the HCPC in April 2019. The evidence suggests the Council referred the social worker because they had claimed to have attended a meeting when there was evidence they did not do so. This happened at the end of February 2019. Therefore, I am of the view the referral was, on balance, due to this specific issue.
38. As the Council likely made the referral due to this specific incident, it is unlikely it would have referred the social worker to the HCPC any earlier. This is because there is no evidence the Council had any concerns about the social worker’s code of conduct before the end of February 2019.
39. The Council made the referral around three months after becoming aware of the alleged conduct. It took the Council around a month to make the referral after it had made the decision to refer.
40. I am satisfied this was a reasonable timeframe. This is because the Council has explained it needed time to gather the necessary evidence to support the referral. It is reasonable to allow the Council time to ensure it submits a well-documented and supported referral to ensure the HCPC had all the information to assess.
41. Therefore, I do not consider there was any fault in the Council’s handling of Miss X’s concerns about the social worker.

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Agreed action

42. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Miss X for failing to take appropriate action to safeguard Mrs Y when it received the police referrals.
• Pay Miss X £300 in recognition of the distress and uncertainty caused by the fault identified.
43. The Council will complete the above within four weeks of the final decision.

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Final decision

44. I find fault with the Council for failing to take appropriate action to safeguard her mother. I do not find fault with how the Council completed the mental capacity assessment or with its handling of Miss X’s concerns about the social worker. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman