Summary: We will not investigate this complaint about the Council instigating a section 42 safeguarding enquiry. This is because there is not enough evidence of fault with the Council’s actions to warrant an Ombudsman investigation and further investigation could not add to the Council’s response or make a finding of the kind Mr B and Ms C want.

The complaint

1. Mr B and Ms C complain the Council should not have instigated a section 42 safeguarding enquiry against them and did not have enough evidence to implement this process. Mr B and Ms C say the Council withheld financial information about Mr D from them and only implemented a section 42 enquiry out of vindictiveness because the person they care for, Mr D instigated legal proceedings against it regarding a financial assessment. Mr B and Ms C says the attitude of staff in emails is condescending, hurtful and insulting.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met.(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by the complainants.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council says a member of the finance team made the referral to the safeguarding team because Mr D did not have an independent advocate to support him to raise a legal challenge, and his Shared Lives Carers, Mr B and Ms C, who are also Mr D’s appointee for finances, had appointed a solicitor on his behalf to challenge his financial assessment. The Council says the referral raised concerns about Mr D’s capacity to understand that he had appointed a solicitor to pursue a complaint and it was concerned there may be a conflict of interest with his carers acting on his behalf.
6. The Care Act 2014 says ‘The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom’.
7. We cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. We could not say this is fault or that the Council should not have instigated a section 42 safeguarding investigation based on the information they received.
8. Mr B and Ms C say they did not know about the safeguarding enquiry when they allowed the Social Worker into their home and were therefore not afforded an opportunity to have a representative present at the meeting. The Council says its records show Mr B and Ms C were informed of the purpose of the visit and advised them they did not require legal representation. Mr D’s solicitor also contacted the Council and decided he did not need to attend the meeting. We could not add to this even if we investigated.
9. The Council apologised Mr B and Ms C had not seen Mr D’s capacity assessment and had assumed they had already seen it. We will not investigate this point, Mr B and Ms C were shown a copy of the capacity assessment by the safeguarding Social Worker and we could achieve no more than this.
10. Mr B and Ms C say if they had known Mr D required an Independent Mental Capacity Advocate (IMCA) they would have ensured he had one, but they did not know. The Council explained the purpose of the meeting was to consider the content of the referral and ensure Mr D’s welfare was being promoted and that he had suitable support. It also clarified clarify Mr D requires an IMCA to make decisions. We could not say this is fault or add to this.
11. Mr B and Ms C says the tone and wording of emails received were condescending and unprofessional. The Council says the staff member has reflected on his communication but did not uphold this element of the complaint. How a person perceives correspondence is not a matter we can make a finding on. Mr B and Ms C felt the emails were unprofessional, but we cannot make a finding on how a person is made to feel by correspondence received.

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Final decision

12. We will not investigate Mr B’s and Ms C’s complaint because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman