Summary: Ms X complained on behalf of Mr Y that the Council failed to carry out its safeguarding duties towards him following Mr Y’s request for help and support. Ms X says the Council’s actions have had a negative impact on Mr Y’s mental health. We have found fault by the Council in this matter. The Council has agreed to apologise to Mr Y and make a payment to recognise the uncertainty caused by the fault identified.

The complaint

1. Ms X complained on behalf of Mr Y that the Council failed to carry out its safeguarding duties towards him following Mr Y’s request for help and support. Mr Y referred himself to the Council as the subject of a safeguarding enquiry following his concerns about the medical treatment he received from the NHS.
2. Mr Y also complained about the medical treatment he received.
3. Ms X says the Council’s actions had a negative impact on Mr Y’s mental health and says Mr Y has not received the assistance he needs.

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What I have investigated

4. I have investigated the complaint referred to in paragraph one. The final section of this statement explains the reasons I have not investigated the complaint referred to in paragraph two.

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The Ombudsman’s role and powers

5. 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)
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)

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How I considered this complaint

7. I have discussed the complaint with Ms X and considered the information she and Mr Y provided.
8. I have made enquiries to the Council and considered the information it provided.
9. Ms X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

The Care Act 2014

10. Section 42 of the Care Act 2014 says safeguarding duties apply to an adult who:

• has needs for care and support
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves against the abuse or neglect, or the risk of it.

11. If the section 42 threshold is met, the local authority must carry out a safeguarding enquiry or ask another agency to do so.
12. The Care and Support Statutory Guidance
13. The Care and Support Statutory Guidance, (the Guidance), says, “each local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect”. It also says, “an enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who”. (Care and Support statutory guidance 14.10)
14. The Guidance says “an enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place. An enquiry could range from a conversation with the adult, […] right through to a much more formal multi-agency plan or course of action”. (Care and Support statutory guidance 14.77)
15. The Guidance goes on to say, “the purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult”. (Care and Support statutory guidance 14.78).
16. The scope of each enquiry by a local authority, who leads it and how long it takes, will depend on the circumstances of each case. (Care and Support statutory guidance 14.93).

The Council’s safeguarding policy

17. The Council is a Statutory Safeguarding Partner with the local Clinical Commissioning Group (CCG) and the local Police. Together, the Council, CCG and Police make up the local safeguarding partnership. The partnership’s safeguarding policy says the Statutory Safeguarding Partners have equal and joint responsibility for safeguarding arrangements, including adult safeguarding.
18. The Council’s policy sets out the objectives of an initial enquiry. These include:

• Establishing the facts by gathering information
• Finding out the adult’s views and wishes
• Deciding if the case needs to progress to a safeguarding strategy planning/discussion meeting, or requires a risk management response
• Determining if section 42 criteria applies.

19. The policy says the safeguarding partners will contact the person who raised the concern, to clarify and/or gather more information about the allegation or concern.
20. The policy also says, “all actions and decision making undertaken during the Initial Enquiries should be recorded including the rationale for the decisions made and action taken”.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.
22. In November 2020, Mr Y contacted the Council. Mr Y said he considered the NHS was not providing him with the correct medical treatment, and he asked the Council for some help regarding this.
23. The Council called Mr Y on 12 November 2020 to ask how it could provide help. Mr Y said the Care Quality Commission advised him to contact the Council because he was concerned about alleged neglect and abuse against him by the NHS. Mr Y asked the Council to initiate a section 42 enquiry to look into his concerns. The Council told Mr Y it would contact him again once it had considered his request.
24. The Council initiated a safeguarding enquiry and assigned an officer to Mr Y’s case on 19 November 2020. The officer called Mr Y to obtain details of his safeguarding allegations. Mr Y said he had suffered abuse as a result of medical treatment provided to him, and that this had been detrimental to his health. The officer told Mr Y they would contact him again once they had made some further enquiries.
25. Mr Y called the Council again in January 2021 and made another request for a section 42 enquiry. Mr Y maintained he was not receiving appropriate medical treatment, and said he considered he met the criteria for the Council to provide safeguarding measures.
26. The Council discussed Mr Y’s case with the CCG on 12 January 2021.
27. On 13 January 2021, the Council called Mr Y. It said that following the meeting with the CCG, it decided the matters raised by Mr Y were complaints about his medical treatment rather than safeguarding concerns. Mr Y told the Council he disagreed with this decision.

Mr Y’s complaint

28. Mr Y complained to the Council on 13 January 2021. He said the Council had failed to investigate his concerns, and that the CCG had failed to give him access to certain services and mis-prescribed his medication. Mr Y said he considered he was still at risk of harm and neglect and said he considered the Council had taken the side of the CCG without properly looking at his concerns.
29. The Council acknowledged Mr Y’s complaint on 15 January 2021 and closed the safeguarding enquiry on 20 January 2021.
30. Mr Y brought his complaint to us in June 2021. On 18 June 2021, the Council told us it was still investigating Mr Y’s complaint.
31. The Council provided its complaint response on 30 July 2021. The Council’s investigation report said the Council considered there was no specific detail to suggest abuse, and it considered the matters raised by Mr Y were complaints and not safeguarding issues. The Council said it had reviewed Mr Y's case and concluded it had considered the safeguarding issues but had decided not to progress its enquiry.
32. Mr Y remained dissatisfied with the Council’s response and asked us to investigate. Mr Y appointed Ms X as his representative in dealing with this matter.

Analysis

33. I have considered whether there was any fault in the way the Council made the decision that Mr Y’s concerns were complaints rather than safeguarding concerns. When making the decision, I would expect the Council to follow the relevant guidance and policies, and to record how it made its decision.
34. The Guidance enabled the Council to determine the scope of the enquiry, and to make enquiries ranging from having a conversation with Mr Y about his concerns, through to carrying out more formal enquiries. The evidence shows the Council called Mr Y on 19 November 2020 to discuss his safeguarding concerns. I am satisfied this was carried out as part of the Council’s safeguarding enquiries.
35. The Guidance says councils may decide whether or not they should take further action as a result of their enquiries. In Mr Y’s case, the Council jointly considered the matter with the CCG and decided not to take further action. Although the Guidance permits local authorities to make such decisions, the Council’s safeguarding policy states the rationale for these decisions should be recorded.
36. The Council says the meeting on 12 January 2021 with the CCG was held over the telephone, and as a result, it says there are no minutes of the meeting. The Council has not provided an alternative record of how it considered Mr Y’s concerns at the time and has provided no evidence to demonstrate the rationale behind its decision as part of its discussion with the CCG. I acknowledge the case notes show the Council agreed with the CCG that Mr Y’s concerns should be considered as complaints rather than safeguarding concerns, but the notes do not provide an explanation of how this decision was reached.
37. I acknowledge the Council’s complaint response dated 30 July 2021 provided Mr Y with an explanation for its decision. However, there is no record the Council gave this explanation until six months after Mr Y’s complaint. I have not found the length of time taken to consider the complaint to be fault, as the Council told Mr Y on 15 January 2021 that it may take up to six months to complete its investigation.
38. However, the absence of the Council’s rationale for its decision within its records is a failure to adhere to its safeguarding policy, and this is fault by the Council.
39. Having identified fault, I must consider whether this caused Mr Y a significant injustice. Ms X says the Council’s actions had a negative impact on Mr Y’s mental health as he thought the Council did not properly consider his concerns. I consider the time taken for the Council to provide Mr Y with an explanation for its decision added to Mr Y’s uncertainty during this period, and I consider this was an injustice to Mr Y.

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Agreed action

40. To address the injustice arising from the fault identified, the Council has agreed to take the following action within one month of the final decision:

• Provide an apology to Mr Y;
• Make a payment of £150 to recognise the uncertainty identified, and;
• Remind staff to ensure it adheres to its safeguarding policy, in particular to retain complete and accurate records to demonstrate how decisions are made regarding safeguarding enquiries.

The Council is required to provide evidence it has complied with the above recommendations.

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Final decision

41. I have found fault by the Council in this matter, and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

42. I have not investigated Mr Y’s complaint about the medical treatment he received. This is because we do not have jurisdiction to investigate complaints that have not been resolved by the NHS. The Parliamentary and Health Service Ombudsman makes final decisions on complaints regarding these matters.

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Investigator's decision on behalf of the Ombudsman