Summary: Miss A complains the Council failed to safeguard her from financial abuse. Miss A also complains about the mental capacity assessment and how the Council handled the decisions about her accommodation, which resulted in her living with her family instead of her own accommodation. The Ombudsman finds fault with the Council for failing to act in a timely manner in safeguarding Miss A. The Ombudsman also finds fault with the Council for how it considered Miss A’s housing needs. This caused Miss A significant distress. The Ombudsman does not find fault with the Council for how it conducted the mental capacity assessment. The Council has agreed to pay a financial remedy and consider service improvements.

The complaint

1. Miss A complains the Council failed to safeguard her when she reported financial abuse and controlling behaviour in her shared lives accommodation.
2. Miss A complains that following the abuse, the Council carried out an assessment of her mental capacity without seeking information from the professionals involved in her life and clarifying her needs.
3. Miss A also complains the Council ended her care and support when she was forced to stay with her parents temporarily due to the abuse she was experiencing. Miss A complains this has had a significant impact on her wellbeing and left her without the support she needed.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
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)

Back to top

How I considered this complaint

7. I have considered Miss A’s complaint and information provided by her representatives. I have also considered information from the Council. I considered comments from Miss A’s representatives and the Council on drafts of my decision.

Back to top

What I found

Relevant law and guidance

Mental Capacity assessment

8. The Mental Capacity Act 2005 and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
9. 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.
10. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
11. 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?
12. 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
13. 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)
14. 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.

Safeguarding legislation

15. If a Council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult (Care Act 2014, section 42).

What happened

16. Miss A has a learning disability. She previously lived independently in accommodation provided by the Council.
17. Miss A moved into the supported accommodation in December 2020. This was arranged by the Council. The accommodation also housed three other residents.
18. In the assessment and tenancy agreement with the shared lives accommodation, the Council recognised that Miss A had previously been subject to financial manipulation. It also recognised this was a continuing concern for any new relationships she formed.
19. Shortly after moving into the shared accommodation, staff from the accommodation raised concerns with the Council that another resident was financially manipulating Miss A.
20. The Council did speak to Miss A about the concerns and reminded her not to give other people money.
21. Miss A’s family also became concerned that Miss A was experiencing financial control by another resident. They raised concerns with the Council that Miss A was withdrawing large sums of money and giving it to another resident, as well as purchasing items for the other resident.
22. Between December 2020 and February 2021, Miss A’s family and other professionals raised multiple safeguarding concerns with the Council for financial abuse towards Miss A.
23. In February 2021, police were called twice due to concerns for Miss A’s wellbeing and financial abuse. The Council and police asked to meet with Miss A to discuss the concerns. Following this meeting, the Council opened a safeguarding enquiry for Miss A. The Council reviewed the incident and determined that it did not meet the criteria for a section 42 safeguarding investigation.
24. After the interview, Miss A’s family took her to the family home to stay. The family home was in another local authority.
25. The Council contacted Miss A to discuss where she would like to live. The Council also conducted a mental capacity assessment on Miss A about her financial decision making.
26. The Council determined that Miss A had capacity to make her own financial decisions and would be supported by a family member as an appointee to help her managing her money.
27. Miss A told the Council she wanted to move closer to her family. The Council completed a referral to the new Council area Miss A was staying in. The Council spoke to the newly allocated social worker and explained Miss A’s history and that she would need support to find accommodation. The Council then ended its support and closed Miss A’s case.
28. Miss A’s family complained to the Council that it had not suitably safeguarded her while she was in the shared lives accommodation. The family also complained that Miss A did not have capacity to make financial decisions, and the Council had closed the case and left her without support in a new area.
29. The Council did not uphold the complaint. Miss A’s family remained unhappy with the Council’s response and bought the complaint to the Ombudsman.

Analysis

Safeguarding

30. The Council had already identified that Miss A was vulnerable to financial exploitation as part of her transition to the shared lives accommodation. This was highlighted to the staff in the accommodation and included as a risk tenancy paperwork.
31. Shortly after moving into the accommodation, staff and Miss A’s family raised safeguarding concerns with social workers about financial abuse towards her. They gave multiple occasions where Miss A would give large sums of money to another resident and highlighted that they felt she was continually at risk.
32. After concerns were raised, the Council had conversations with Miss A about her financial decisions. However, no further action was taken or support put in place for Miss A.
33. Police were then called on two occasions for concerns for Miss A’s wellbeing and financial abuse. Concerns had been raised by her family and by professional at a bank who were concerned about her behaviour.
34. The Council and the Police met with Miss A at her accommodation. During this meeting the concerns about financial abuse were discussed with Miss A and she was given the opportunity to voice her opinions.
35. The Council completed a safeguarding review of Miss A’s circumstances. It found she did not meet threshold for a section 42 safeguarding assessment as she was no longer at risk, however it agreed to carry out a mental capacity assessment and find out where Miss A wanted to live.
36. I have reviewed the Council’s case notes for the time where Miss A lived in the accommodation. There is no clear evidence that the Council suitably considered the safeguarding concerns or considered acting until the police interview and the decision was made for a section 42 referral.
37. Concerns were raised by professionals and family members of Miss A about the financial manipulation she was experiencing for an extended period. Although the Council had conversations with Miss A about this, it did not put any further support in place or take action to try and prevent it from occurring. The Council knew Miss A had a history of this happening and failed to address the situation before it escalated.
38. By failing to record its decision making or consideration of the concerns, the Council has not been able to evidence why it did not provide additional support to Miss A sooner. This was fault by the Council and has caused Miss A injustice.
39. Furthermore, the Council only decided to carry out a section 42 referral after it had asked Miss A’s family to remove her from the accommodation. By this point, Miss A had been removed from the risk, and the outcome of the investigation was a mental capacity assessment. The Council had recognised the accommodation was unsuitable for Miss A, and had asked Miss A’s family to provide further support and alternative accommodation. By delaying the section 42 until Miss A’s family had removed her, the Council failed to properly explore what the risk was to Miss A and what support could have been put in place for her.
40. Case notes show the Council was aware the accommodation was unsuitable for Miss A, and that concerns were consistently being raised. The lack of clear rationale for not acting sooner meant Miss A was in unsuitable accommodation longer than she should have been and was not suitably safeguarded. This was fault by the Council causing Miss A injustice.

Location of interview

41. The Council also held an interview with Miss A and the Police in the place where she was experiencing the alleged manipulation, and with the other resident in close proximity.
42. The Ombudsman cannot question decisions made by the Council where all relevant information has been properly considered. These are professional decisions that Councils are entitled to make. The Ombudsman can only investigate whether Councils have considered the suitable information when making its decision.
43. I have reviewed the Council’s records about this meeting. Council records show the other resident to whom Miss A was giving money remained in proximity outside of the meeting room while Miss A was being spoken to. The Council and the Police both then witnessed the other resident trying to exert controlling behaviour towards Miss A.
44. It was for the Council and the police to decide what is an suitable setting to hold the interview with Ms A. However, I have seen no evidence from the Council that it considered whether the accommodation would be a suitable place for the interview given the allegations of abuse and presence of the alleged abuser. This was fault by the Council and caused Miss A further distress.

Mental Capacity assessment

45. The safeguarding review of Miss A highlighted the need for mental capacity assessment for Miss A and her financial decisions.
46. The Council carried out a mental capacity assessment for Miss A while she stayed with her family. Miss A was supported by her family during the assessment, but her family were asked not to speak for her.
47. I have reviewed the Council records for Miss A’s answers during the assessment.
48. The law says clearly that 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

49. Miss A’s answers during the assessment show that she could understand what was being spoken about, retain the information and weigh up the outcomes of the decisions she had made.
50. I appreciate that Miss A’s family feel she does not have capacity to make financial decisions because of her history. The law does say that information from family and professionals can be included in the assessment.
51. However, reviewing the assessment, the Council records show the social worker completed the assessment using the guidance set out. The social worker was able to evidence

• Explaining to the person all the information relevant to the decision. The explanation must be in the most suitable 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.

52. Furthermore, the law also says “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”.
53. The Ombudsman cannot question a decision that has been made if there is no fault in how the decision has been reached. It is my view there is no fault in how the mental capacity assessment was conducted, and therefore the outcome is not a decision the Ombudsman can question. It is therefore my view there was no fault by the Council in how it conducted the mental capacity assessment.

The decision for Miss A to move

54. Just before the Council and the police spoke to Miss A, the Council accepted that it would be inappropriate for Miss A to continue living in the supported accommodation.
55. The Council wrote to Miss A’s family and asked if Miss A could stay with them temporarily. The family then picked Miss A up after her meeting with the Council and the Police, and she stayed with them.
56. The family communicated on several occasions with the Council, before and after Miss A stayed with them, that they could only have Miss A live with them temporarily, and on a short-term basis.
57. I have reviewed the Council’s records about the decision for Miss A to move. I cannot see any evidence the Council explored alternative accommodation for Miss A before or after asking her family to look after her. The Council was aware the accommodation was unsuitable and should have explored alternative alternatives. This was fault by the Council, which resulted in Miss A not being given the choice to move locally and meant Miss A remained in unsuitable accommodation longer than she should have been.
58. It also resulted in significant impact on Miss A’s family who then took her in for a significant amount of time. It was not the responsibility of Miss A’s family to care for her in the interim, and the Council should have explored further what support Miss A could be given.
59. After the safeguarding review, the Council spoke with Miss A about where she would like to live. Miss A told the Council she would like to move to be closer to her family. Miss A had capacity to make the decision about where she wanted to live. The Council told Miss A to give notice to the supported accommodation to end her tenancy.
60. This was fault by the Council as this would have made Miss A intentionally homeless and likely ineligible for housing in her new area. However, no injustice was caused to Miss A as her family were aware of this and highlighted this to the Council.
61. In the referral to the new area, the Council said that Miss A would need support to access accommodation. There was no information at first which set out why Miss A had moved. However, I have reviewed the Council records and am satisfied that once a social worker was allocated in the new area, information was shared between the Councils about Miss A’s needs and previous history.
62. Miss A did not have a care plan with the Council when she made the decision to move. Therefore, the Council did not have to facilitate a full transition.
63. I am satisfied the Council acted appropriately in closing the case. However I am of the view the conversations with Miss A and her family about her living arrangements were not suitably handled, and not all avenues were explored. This was fault by the Council causing injustice to Miss A and her family.

Back to top

Agreed action

64. Within 4 weeks of my final decision the Council has agreed to

• Write to Miss A and apologise for the fault set out above.
• Pay Miss A £500 in recognition of the distress and uncertainty that has been caused.
• Write to Miss A’s family and apologise for not considering their needs suitably when exploring Miss A’s housing alternatives.
• Pay Miss A’s family £300 in recognition of the distress caused to them by having to care and support Miss A after the Council asked for them to house her.

65. Within 12 weeks of my final decision the Council should

• Consider issuing staff with training or guidance for best practice when discussing allegations of abuse. This should include clear guidance on where and how concerns are best discussed.
• Consider whether changes should be made to how the Council considers accommodation needs during a placement breakdown. This should also include a review of how the Council communicates with family members and how it will explore all options available.
• Provide training and guidance to staff for recording decision making processes where safeguarding concerns are raised. This should include where the decision is not to act, rationales should still be recorded.

Back to top

Final decision

66. I have now completed my investigation. I find fault with the Council for causing delay in safeguarding Miss A, and for how it considered her accommodation options. I do not find fault with the Council for how it completed the mental capacity assessment.

Back to top

Investigator's decision on behalf of the Ombudsman