Summary: Mr and Mrs X complained that the Council failed to properly deal with safeguarding concerns they raised about Mr X’s brother’s care of their mother. They also complained the Council should have done more to help Mr X’s brother. Mr and Mrs X said that being excluded from the mother’s life at the end of her life caused them distress. We do not find the Council at fault.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, represent this complaint on behalf of Mr X’s mother (Mrs A) and brother (Mr B).
2. Mr and Mrs X complain that the Council failed to properly deal with safeguarding concerns they raised about Mr X’s mother, Mrs A. They say Mr X’s brother, Mr B, was not capable of providing their mother with adequate care. They also say family members were subjecting their mother to financial and psychological abuse. They complain that the Council should have done more to help Mr B.
3. Mr and Mrs X say that being excluded from the mother’s life at the end of her life caused them distress.

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What I have investigated

4. As I explain below, the Ombudsman cannot investigate complaints that are late unless there is a good reason. Late complaints are where the complainant takes more than 12 moths to complain to us about something a council has done.
5. Mr and Mrs X complained to us in June 2021 about events dating back to 2019. I have considered the impact of COVID-19 and two family bereavements on Mr and Mrs X’s ability to deal with matters promptly. I find the impact of these is likely to have caused delay in Mr and Mrs X bringing their complaint to the Ombudsman.
6. For these reasons, I have decided there are good reasons to exercise our discretion and investigate this complaint back to September 2019.

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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)
8. 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)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. 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)
11. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

12. Mr and Mrs X represent this complaint on behalf of Mr X’s mother (Mrs A) and brother (Mr B). Mrs A and Mr B are both deceased. Mr and Mrs X complain about safeguarding referrals they made to the Council. For this reason, I consider they are suitable to represent this complaint on Mrs A and Mr B’s behalf.
13. I considered the information and documents provided by Mr and Mrs X and the Council. I spoke to Mr and Mrs X about this complaint. Mr and Mrs X and the Council had an opportunity to comment on an earlier draft of this decision. I considered all comments and further information received before making a final decision.
14. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

Safeguarding

15. Under section 42 of the Care Act 2014, councils have a duty to make safeguarding enquiries if they reasonably suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves.
16. The Care and Support Statutory Guidance sets out what a safeguarding enquiry should look like. It says an enquiry could range from a conversation with the adult or their representative before initiating a formal enquiry under section 42, through to a much more formal multi-agency plan or course of action. The guidance says it is for the council to determine the appropriateness of the outcome of the enquiry.
17. 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

18. 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. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. A person should not be treated as unable to make a decision:
• because they make 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.
19. 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.
20. An assessment of someone’s capacity is specific to the decision to be made at a particular time. 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.

What happened

21. Mr X’s mother (Mrs A) and his brother (Mr B) lived together. Mr B provided a lot of Mrs A’s care.
22. The Council told Mr and Mrs X that Mr B and another brother had applied for Legal Power of Attorney for Mrs A’s finances.
23. In September 2019, the Council visited Mrs A and completed a mental capacity assessment to see if she had the capacity to understand that decision. The Council assessed that Mrs A had capacity to make that decision about her finances.
24. The Council told Mr and Mrs X it had assessed that Mrs A had capacity to make the decision about her finances.
25. Also in September, Mr and Mrs X told the Council they had safeguarding concerns for Mrs A.
26. In October, the Council told Mr and Mrs X it had visited Mrs A and had no safeguarding concerns. The Council told Mr and Mrs X that Mrs A did not want any of her personal information shared with them.
27. In December 2020, Mr and Mrs X told the Council they had safeguarding concerns for Mrs A. The police did a welfare visit. The police told the Council they had no concerns. The Council then visited Mrs A shortly after. The Council found no safeguarding concerns.
28. Mrs A passed away in January 2021. Mr B passed away in February.
29. In March, Mr and Mrs X complained to the Council.
30. The Council told Mr and Mrs X that Mrs A had clearly expressed that she did not want her information shared with them, and had signed a consent form expressing this. The Council said it had assessed Mrs A as having capacity to make decisions about who was involved managing her finances, so it was reasonable to assume she had capacity to make a decision about who she consented to share her information with.
31. The Council said it was satisfied it had investigated the issues raised over the last two years and provided appropriate advice, information, and support in line with Mrs A’s wishes.

Analysis

Safeguarding concerns

32. Mr and Mrs X complain that the Council failed to properly deal with safeguarding concerns they raised about Mr X’s mother, Mrs A. They say Mr X’s brother, Mr B, was not capable of providing Mrs A with adequate care. They also say family members were subjecting their mother to financial and psychological abuse.
33. I have considered the two occasions when Mr and Mrs X raised safeguarding concerns with the Council: September 2019 and December 2020. I find that both times, the Council investigated quickly and thoroughly. The Council appropriately considered Mrs A’s care needs and how they were being met. I therefore find that the Council’s investigations were suitable. The Council found no safeguarding concerns on either occasion. These are decisions the Council is entitled to make.
34. I do not find fault with the way the Council investigated Mr and Mrs X’s safeguarding concerns or the Council’s decision that there were no safeguarding issues to act on.

Decision about Mrs A’s capacity

35. Mr and Mrs X do not believe that Mrs A had the capacity to decide that she did not want her personal information shared with them.
36. In September 2019, the Council assessed that Mrs A had capacity to make decisions about who was involved with her finances. I have considered the Council’s assessment of Mrs A’s mental capacity and I find no fault with it.
37. A week after this assessment, Mrs A told the Council she did not want it to share her personal information with Mr and Mrs X. She signed a consent form saying she did not consent for the Council to share her information with them.
38. During October, a month later, Mrs A repeated to the Council four times that she did not want her information shared with Mr and Mrs X. She also signed two more consent forms confirming this.
39. In December 2020, Mrs A told the Council three further times that she did not want her personal information shared with Mr and Mrs X.
40. I do not agree with Mr and Mrs X. I find that Mrs A was very clear about her wishes. The Council respected this. There is no evidence to suggest that Mrs A did not have capacity to make this decision. For this reason, I do not find the Council at fault.

Help for Mr B

41. Mr and Mrs X complain that the Council should have done more to help Mr B. They say the Council did not acknowledge the need to help Mr B.
42. I have seen evidence of the support offered to Mr B. I find the Council knew about, and appropriately oversaw, involvement from substance misuse and mental health services to support Mr B. This is evidence of good practice.
43. There is no evidence that the Council could have done more to support Mr B. For this reason, I do not find the Council at fault.

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Final decision

44. I have completed my investigation and I do not uphold Mr and Mrs X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman