Summary: We have not found fault in the way the Council made its decisions regarding safeguarding enquiries, but there was a delay in its completion of the assessments and there was fault in the way the Council communicated with Dr C about the powers of the attorney and the requirement to apply to the Court of Protection. The Council has agreed to apologise and pay a financial remedy.

The complaint

1. Dr C and Dr D complain on behalf of Dr D’s mother, Mrs E, who lacks the mental capacity to make this complaint.
2. Dr C and Dr D say:
• The Council failed to properly safeguard Mrs E.
• There was a delay in the completion of assessments.
• The Council gave them incorrect advice that they had to make an application to the Court of Protection if they wanted to supervise Mrs E’s contact with her son.

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The Ombudsman’s role and powers

3. 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)
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 have discussed the complaint with Dr C. I have considered the documents that he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

6. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s safeguarding duties. The Council also has its own policies.

Safeguarding duty

7. Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:
• has needs for care and support,
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
8. If the section 42 threshold is met, then the Council must make enquiries or cause others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom.
9. Council’s safeguarding procedure
10. The Council’s procedure sets out the three stages of a safeguarding enquiry;
• Stage 1: Receipt of the referral
• Stage 2: Enquiry
• Stage 3: Closing the enquiry
11. The procedures state that an enquiry may be closed at any stage if it is agreed that an ongoing enquiry is not needed or if the enquiry has been completed and a safeguarding plan agreed and put in place.

Mental Capacity Act 2005

12. 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. The Act is supported by the Mental Capacity Act Code of Practice which provides practical guidance on what action to take.
13. The five key principles in the Act are:
• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Lasting Power of Attorney

14. A Lasting Power of Attorney (LPA) is a legal document, which allows a person to choose one or more persons to make decisions for them, when they become unable to do so themselves.
• Property and Finance LPA – this gives the attorney the power to make decisions about the person's financial and property matters.
• Health and Welfare LPA – this gives the attorney the power to make decisions about the person's health and personal welfare. This LPA can only be used when a person lacks capacity to make their own decisions.
15. The Mental Capacity Act Code of Practice says that attorneys (people who hold an LPA) must have regard to the Code of Practice.
16. The Code of Practice sets out which decisions the attorney holding a welfare LPA can make. These include:
• Who the donor may have contact with.
17. The Code of Practice asks what an attorney should do it they think someone else is abusing the donor. It says:
• The attorney should report it to the Office of the Public Guardian and ask for advice on what action they should take. They should contact the police if they suspect physical or sexual abuse, theft or serious fraud. They might also be able to refer the matter to local adult protection authorities.

Best interests decisions

18. When making a decision under the Mental Capacity Act 2005, a decision maker must be identified. This could be an attorney (person who holds the LPA), a court appointed deputy or a practitioner or team responsible for health or social care.
19. The term ‘best interests’ is not defined in the Act, however it does set out a checklist of common factors the decision maker must consider:
• the person's past and present wishes and feelings;
• the beliefs and values that would be likely to influence their decision if they had capacity; and
• the other factors that he would be likely to consider if he were able to do so.
20. The decision maker should take into account, if it is practicable and appropriate to consult them, the views of:
• anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
• anyone engaged in caring for the person or interested in his welfare;
• any donee of a lasting power of attorney granted by the person; and
• any deputy appointed for the person by the court
21. as to what would be in the person's best interests.

What happened

22. Mrs E has a diagnosis of Alzheimer’s disease and her capacity to make decisions has been declining in recent years.
23. There had been allegations that Mrs E’s son, Mr F took money from Mrs E in the past, but no criminal convictions were made. Dr D obtained LPAs for Finance and Property and Health and Welfare for Mrs E in 2016.
24. What follows is a chronology of what happened. I have based this on the Council’s and Dr C’s accounts of events. Where there is a difference, I will set this out.
25. Dr C has said that a lot of the allegations of abuse related to Mr F’s wife as well as Mr F. This has been noted, but for the sake of simplicity I have referred to Mr F in terms of the allegations of abuse.

Safeguarding referral 1 – May 2019

26. In May 2019, Mrs E’s GP made a safeguarding referral to the Council regarding possible financial abuse. He said Dr D had said Mr F was exploiting Mrs E financially.
27. The Council started a section 42 safeguarding enquiry and the social worker visited Mrs E. The Council closed the safeguarding enquiry in June 2019 as it said the concern of financial abuse related to historic concerns which had been investigated and had been resolved by Dr D obtaining an LPA for finance and property for Mrs E. Therefore, Mrs E was no longer at risk of financial abuse.

Safeguarding referral 2 – June 2019

28. Dr D made a safeguarding referral and said Mr F took Mrs E to see a solicitor to try to persuade her to cancel the LPA which was in Dr D’s name and to award him the LPA instead. Dr D said Mrs E was at risk of emotional harm through coercion.
29. The Council started a safeguarding enquiry and the social worker visited Mrs E. The safeguarding enquiry was closed in July 2019 for the following reasons:
• Mrs E did not want the social worker to proceed with the safeguarding enquiry and she had the mental capacity to make that decision.
• Mrs E told the social worker that she wanted to make it clear that Mr F did not abuse her.
• The social worker said that, on the balance of probability, the allegation of emotional abuse was unsubstantiated.

Safeguarding referral 3 – August 2019

30. A safeguarding concern was raised against Dr D saying that Dr D did not allow Mr F to visit Mrs E and that Dr D was financially abusing Mrs E.
31. The social worker visited Mrs E and the Council closed the safeguarding enquiry in August 2019 as the allegations were unsubstantiated.

Conversation – 16 February 2020

32. Dr C spoke to manager 1 on 16 February 2020 as he wanted the Council to take more safeguarding action to protect Mrs E from visits from Mr F. Manager 1 said:
• He was still waiting to speak to the legal department and the police, but the police’s safeguarding unit had said that the matter did not meet their criteria for intervention.
• In any event, Mr F was not allowed to visit Mrs E because of the Covid restrictions and Dr C should remind him of this.

Conversation – 8 April 2020

33. Manager 1 spoke to Dr C on 8 April 2020 and said:
• The police would not carry out an investigation as the matter did not meet the criteria for this. Dr C was not satisfied with this.
• They discussed a way forward and the manager said he would need to speak to Mrs E to assess her capacity.
• There was a safeguarding plan in place for Dr C and Dr D to ensure Mrs E’s safety. If there were further concerns in the future, they would need to make a new safeguarding referral.

Safeguarding referral 4 – 22 June 2020

34. Dr C spoke to the social worker on 22 June 2020 and said he wanted:
• ‘We are looking for safeguarding to be implemented and for some form of protection to be provided during visits by her son and his wife, even if that means one of my family being present during visits… I am not sure how this can be applied in practice and hope that you can provide some advice.’
• The police had told him there was nothing they could do without the Council putting safeguarding in place.
35. The Council did not progress this referral to a section 42 enquiry as it said there was no evidence of abuse or neglect.

Complaint – 1 July 2020

36. Dr C made a complaint on 1 July 2020 and said:
• This case had been ‘dragging on far too long and I have not had a satisfactory response to my safeguarding referral’.
• They had agreed ‘an interim protection plan’ but that was only effective while the Covid restrictions were in place. Now that the Covid restrictions were easing, Mr F may visit Mrs E again in person.
• The Council had failed to safeguard Mrs E and failed to liaise with the police. The police had told him that they closed the case because of the withdrawal of the Council’s safeguarding.
• He wanted the Council to reinstate safeguarding and seek support from the police to investigate matters.
37. Manager 1 spoke to Dr C on the same day and said:
• The Council would assess Mrs E’s mental capacity to decide whether she wanted to see Mr F and whether she was able to protect herself from emotional abuse by Mr F.
• Dr C wanted to know whether a social worker would be appointed permanently for the safeguarding. Mrs E did not meet the criteria for safeguarding as there was no abuse at this time.
• Dr C said he could not understand this decision as he had provided evidence to the police. The manager said he had told Dr C previously that the police had said there was no evidence of abuse and therefore they would not investigate the matter.

Conversation and email - 15 July 2020

38. Dr C emailed manager 3 on the same day. He said:
• His concern was that the Council did not have statutory powers of enforcement, but manager 2 had told him the family could possibly obtain a non-molestation order.
• Manager 2 told him manager 1 closed the safeguarding referral on 1 July 2020 because the concerns of financial abuse were historic. Dr C said this exemplified his frustration as manager 1 had never told him this. Also, Dr C’s concerns were about the current risks of abuse through coercion and not the historic financial abuse.

Conversation - 17 July 2020

39. Dr C had a conversation with manager 3 on 17 July 2020. The Council does not have a record of the conversation. Dr C’s record is as follows:
• Manager 3 suggested a less restrictive option than a non-molestation order. Manager 3 said that if Mrs E lacked capacity to manage her finances and to protect herself from abuse, Dr D could use her LPA to make a best interest decision to supervise visits by Mr F.
40. Dr C spoke to manager 2 and he agreed this was a suitable way forward. The social worker was going to carry out an independent capacity assessment to support this route in case Mr F challenged the capacity assessment.
41. The social worker discussed the case with her manager on 27 July 2020. The notes of the conversation said: ‘CoP case – [Mrs E] wants a relationship with her son - daughter doesn’t want son involved… To leave with CoP and cease involvement.’

Social worker’s visit – 28 July 2020

42. The social worker visited Mrs E on 28 July 2020 to carry out the assessments.
43. Dr C spoke to manager 2 on 28 July 2020. Dr C’s record of the visit is as follows.
• He said he became concerned during the social worker’s visit that the social worker was not following the agreed strategy but instead suggested that they should apply to the Court of Protection to appoint an independent deputy. The manager replied that the social worker had been ‘vocalising some of the options’.
44. The Council’s record.
• Dr C wants to be assured that they are within their rights to manage the contact between Mrs E and Mr F to reduce the risk of Mrs E being subjected to coercion.
• ‘I advised that due to the nature of the concern the specific decision to be assessed is quite challenging to get right and being clear on the relevant information therefore also needs considering and [the social worker] was seeking advice in this regard.’
45. Dr C sent an email to manager 3 on the same day and said:
• He had concerns about the social worker’s visit.
• He thought the social worker was going to assess Mrs E’s capacity to identify whether she was being coerced and her capacity to manage her finances. If the social worker confirmed those two points, then Dr D could make best interest decisions to supervise Mrs E’s contact.
• He doubted that the social worker understood what assessments she was carrying out as she said that Mrs E wanted to continue to see her son. That was not the issue that was being assessed.
• The social worker said Dr D should apply to the Court of Protection to cancel the LPAs and to appoint a Deputy.

Telephone conversation – 24 August 2020

46. Dr C’s record:
• ‘The social worker said that social services will make a best interest decision to refer the matter to the Court of Protection which will determine appropriate terms for visits.’
• Dr C disputed this with the social worker and said this was not what had been agreed with managers 2 and 3. The social worker told him that managers 2 and 3’s proposals were not workable and that an application to the CoP was the only route available.
• The social worker had already spoken to Mr F and his daughters had already emailed their reasons for visiting. The social worker asked whether Dr C wanted to do the same when the case went to the CoP. It was clear that the social worker was preparing a case for the court.
• The social worker said she would formalise her decision and write to Dr C (without copying it to Mr F) then we would need to apply to the CoP.
47. The social worker’s note of the conversation said:
• Dr C was ‘concerned that they have to go to the CoP for a decision as the decision requires a court order to achieve their desired outcome of controlled access to [‘Mrs E].’
• ‘[Dr C] is not happy that they have to approach the CoP and would have preferred if we make the decision. I explained that we do not have the power to make the restrictions they are seeking.’
48. A note of an audit of the social worker’s cases by her manager noted on 28 August 2020: ‘Best interest decision to be written up to go to CoP.’

Telephone call - 2 October 2020

49. Dr C called the social worker to chase her reports. The social worker said she had completed the capacity assessment but not the best interest report. She said Dr C only needed the capacity assessment to make the application to the CoP and would try to send it.

Office of the Public Guardian – 22 October 2020

50. Mr F contacted the OPG and said he was concerned that Dr D was mismanaging Mrs E’s finances and preventing visits to Mrs E by family members. The OPG started an enquiry and an OPG investigator contacted the social worker.
51. The social worker’s note of the conversation said the CoP investigator wanted to know what the Council’s involvement in the case had been. The social worker said: ‘I explained my recent involvement with the case and that I am to finalise the mental capacity assessment and best interest decision for recommendation that CoP to be approached to ensure that Article 8 rights are protected.’
52. The OPG wrote to the Council a few days later to formally request the information.
53. In the following months the social worker’s notes repeatedly referred to CoP’s involvement and CoP’s request for documents even though it was the OPG, not CoP which was involved.

Email – 25 October 2020

54. Dr C emailed manager 3 and said:
• The social worker told him on 24 August 2020 that we would need to apply to the CoP for a best interest decision for the supervised visits and her report was needed for the application.
• He had still not received the report despite chasing the social worker. In the meantime, it seemed they had no legal powers to insist upon supervising the visits to prevent abuse.

Mental capacity assessments – July/November 2020

55. The documents are dated 28 July 2020 but were sent to Dr C on 17 November 2020. The social worker assessed Mrs E’s capacity to decide whether she wanted to see Mr F and said she did.
56. The social worker also assessed whether Mrs E had the capacity to keep herself safe from financial abuse when Mr F visited and said she did not. The social worker also said in that respect:
• ‘Safeguarding enquires have also been made and concluded that an approach to the Court of Protection by the LPA as being the recommended outcome.’

Best interest decision – July/November 2020

57. The social worker prepared a ‘best interest decision’ document dated 28 July 2020 and said:
• The best interest decision to be made was whether Mrs E should have unsupervised contact with her son.
• She set out the three options from most restrictive (no contact) to least restrictive (unsupervised contact).
• Supervised contact: ‘It is difficult to see how this could be totally for the benefit of [Mrs E], without conflict arising between the siblings.’
• Unsupervised contact: ‘this option does not mitigate the potential perceived risks of remaining safe from coercion and control.’
• She had been advised that ‘If an agreement could not be reached by the siblings that a referral could be made to the Court of Protection’ for a best interest decision regarding contact to be made.
• She concluded: ‘My professional opinion is that in light of the conflict between the siblings, an approach to the Court of Protection may need to be considered by the siblings.’

Office of the Public Guardian – December 2020

58. The social worker sent the best interest decision to the OPG and the document said that the legal advisers had told her that ‘evidence should be documented with a recommendation that presentation to the CoP is required for an appropriate Court Order to be considered/provided.’
59. The social worker contacted the OPG in December 2020 and asked them for an update on whether visits to Mrs E should be supervised.
60. The OPG replied and said:
• ‘Just to clarify, it is not for the OPG to make this decision. The attorney should decide what is in the donor’s best interests. If a decision can’t be made, then an application should be made to the CoP.’
61. The OPG closed the matter in January 2021 and said it found no mismanagement of the finances and said the attorney (Dr D) had decided that pre-arranged and supervised visits were in Mrs E’s best interests. The OPG would inform the family of the outcome.

Dr C’s complaint – 7 February 2021

62. Dr C made a formal complaint on 7 February 2021 and said:
• The social worker gave incorrect advice as she said they had to apply to the Court of Protection to supervise contact. This caused a lot of delay, stress and anxiety as well as expenses in starting an application to the CoP.
• There was a delay of four months between the capacity assessment of July 2020 and sending the report in November 2020 which was excessive.
• The Council agreed a strategy on 15 and 17 July 2020 that Dr D would use her LPA and make a best interest decision to supervise the visits. The Council would provide an independent assessment of Mrs E’s capacity to circumvent any allegation by Mr F that Dr D’s decision making was unlawful or biased.
• When they spoke to the social worker on 28 July 2020, she said she wanted the matter referred to the Court of Protection to appoint an independent deputy. Dr C then rang the Council as he was concerned about this.
• The best interest decision report said that, if an agreement could not be reached between the siblings, a referral could be made to the Court of Protection.
• Dr C said he spent a lot of time researching the law and had a meeting with a solicitor who specialised in elder abuse. He recommended that Dr C should obtain expert advice from a barrister. Dr C read the barrister’s book and found a statement that attorneys could make best interest decisions to restrict contact. He wrote to the barrister who confirmed this.

The Council’s response – 12 March 2021

63. The Council responded to Dr C’s complaint and said:
• The mental capacity assessment said Dr D had LPA to make decisions in Mrs E’s best interests.
• The Council’s legal team confirmed that it was true that, if there was a disagreement in best interest decisions, the Court of Protection could provide a binding decision.
• The social worker did not advise him to apply to the Court of Protection but said this could be considered.
• It partially upheld the complaint that there was a delay between the social worker carrying out the assessments and providing a copy of the documents to Dr C. It said that the delay was partly caused by the complexity of the case and the Covid pandemic.

Complaint – 27 March 2021

64. Dr C escalated his complaint and said:
• He quoted all the telephone conversations with the social worker, the recommendations of the assessments and the fact that he repeatedly emailed the Council saying that he had been advised that the only way to restrict Mrs E’s contact was to apply to the CoP and nobody ever contradicted him.
• He said it was not ‘remotely credible’ for the social worker to deny that she gave this advice.

Council’s response – 27 May 2021

65. The Council essentially provided the same decision as before, referring to the capacity assessments and the best interest decision form. The Council said:
• ‘I can find no record made by [the social worker] in the Council’s case notes where she set out that the only option/remedy was to make an application to the CoP.’
• ‘I could find no record whereby she directed you and Dr D to seek independent legal advice.’ Dr C could have sought free advice from the Office of the Public Guardian.

Dr C’s response – 4 June 2021

66. Dr C responded and said:
• He had provided a lot of evidence from contemporaneous notes that the social worker advised them that they had to apply to the CoP.
• He had never said that the social worker advised him to seek legal advice. They were not seeking advice on the powers of the attorney, they were contacting a solicitor to start the legal proceedings as they had been told that this was the only option.

Further information

67. As part of my investigation, I asked the Council when it was decided that the Council would provide a best interest decision. From my reading of the documents it appeared that the Council agreed in July 2020 to assess Mrs E’s mental capacity, but not that it would provide a best interest decision as Dr D was the decision maker because she held the LPAs.
68. The Council said that, during the social worker’s visit to assess Mrs E on 28 July 2020, Dr C and Dr D were insistent that the Council should make a decision. The social worker said she told Dr C and Dr D that they were the decision makers but said Dr D insisted that the LPA was not enough and that the social worker should complete a decision document. In his response to the draft decision, Dr D said that this was a ‘complete misrepresentation of the facts’.

Analysis

69. I have, firstly investigated whether there was any fault in the Council’s decision making in terms of its safeguarding duties. Secondly, I will consider whether there was any fault in the Council’s communications with Dr C about its decision making.

The Council’s decision making

70. I have considered whether there is any fault in how the Council decided whether to start and/or close a section 42 enquiry.
71. The Council closed the first section 42 enquiry in May 2019. Dr C said that Mr F had been visiting Mrs E more frequently and that she was at risk of financial abuse.
72. The Council noted there had been a historical concern about financial abuse which had been addressed by Dr D obtaining an LPA for finance. The Council therefore decided that Mrs E was not at risk anymore and closed the case.
73. I find no fault in the way the Council made that decision. Often, in cases where there is a risk of financial abuse because of the diminishing mental capacity of a person, the Council’s safeguarding plan would be a recommendation for a family member to obtain deputyship or LPA, depending on the person’s capacity. In Mrs E’s case, Dr D had already obtained an LPA and the Council was therefore of the view that the risk of financial abuse had been addressed.
74. Just to be clear, the Council was not saying that Mr F did not pose a risk of financial abuse to Mrs E, rather it was saying that Mrs E was not at risk of financial abuse, because of the protection of the LPA. Therefore there was no further role for the Council in terms of safeguarding.
75. The second safeguarding referral related to the incident where Mr F took Mrs E to a solicitor to try to convince her to give him the LPA. Dr C said Mrs E had been very upset after the incident and he said she was at risk of emotional abuse by Mr F’s attempts to coerce her.
76. The Council closed this enquiry for two reasons. Firstly, it said Mrs E told the social worker that she was not being abused. Secondly, the social worker said Mrs E had the mental capacity to decide whether she wanted a safeguarding enquiry into the issue and Mrs E had decided she did not want a safeguarding enquiry.
77. There was no fault in that approach. The Council had a duty to put Mrs E at the centre of the enquiry and, if Mrs E had the mental capacity to make the decisions then it had to consider her views.
78. I appreciate that Dr C may disagree with the assessment of the mental capacity and the Council’s view on risk, but I cannot question the merit of a decision if there was no fault in the way the decision was made.
79. I have not investigated the Council’s response to the third safeguarding referral as this related to an allegation against Dr D.
80. Dr C then contacted the Council again on 22 June 2020 for his fourth and final safeguarding referral. Dr C wanted the Council to start another safeguarding enquiry, possibly in the hope that this would trigger police involvement. The Council closed the referral and said it did not meet the threshold for a section 42 enquiry as there was no new information.
81. I find no fault in that approach. The concerns raised by Dr C had already been investigated in the previous safeguarding enquiries and the risk had been addressed. Dr C was not in agreement with the outcome of those enquiries, but that was, in itself, not a reason to trigger a section 42 safeguarding enquiry.
82. It is not entirely clear why the Council agreed to become involved again in July 2020, but I presume the Council was trying to be helpful.
83. Dr C said there was an ongoing concern of emotional abuse by Mr F when he visited Mrs E. Dr D wanted to supervise contact between Mrs E and Mr F to address this concern, but was not sure whether she could do this. Manager 3 gave the correct advice on 17 July 2020 and said Dr D had the power, under the Health and Welfare LPA, to supervise contact. The Council agreed to assess Mrs E’s capacity.
84. The social worker concluded that Mrs E lacked capacity to keep herself safe from coercion or financial abuse by Mr F. That was the outcome that Dr C and Dr D were seeking and would have been sufficient for Dr D to use the Health and Welfare LPA to supervise contact.
85. However, the social worker then agreed to write a ‘best interest decision’. The Council says this was done at the insistence of Dr C and Dr D. That may be the case and I cannot criticise the Council for trying to help. But I do think the Council’s communications and its role became confused in the following months which probably contributed to the delay that occurred.

Delay

86. The Council has already upheld the complaint that there was a delay in providing the mental capacity assessments and the best interest decision document.
87. The assessments were carried out in July 2020 and Mr F and his family provided their contributions in August 2020, but the assessments were not written up until November 2020. I appreciate that the Covid-pandemic may have contributed to the delay, but I agree with the Council that some of this delay was fault.

Communication by the Council

88. The Council says it never advised Dr C that Dr D would have to apply to the CoP if she wanted to supervise Mrs E’s contact.
89. I was surprised by that response as it appeared to me that, from July onwards, that had been the Council’s advice and it was difficult, when reading all the documents, to see how Dr C could have come to a different conclusion.
90. I have taken all the evidence into consideration and have concluded that the Council advised Dr C that Dr D had to apply to the CoP if she wanted to supervise contact. I base this on the following:
• Supervision - 27 July 2020. The note of the social worker’s supervision by her manager and the reference to ‘leave with CoP and cease involvement.’
• Visit - 28 July 2020. The social worker told Dr C at the assessment visit that they should apply to CoP.
• Telephone conversation – 28 July 2020. Dr C told the manager he wanted to be reassured that they were within their rights to manage contact as he was concerned by the social worker’s comments during her visits. The manager did not give him this reassurance but said the social worker was seeking advice.
• Email – 28 July 2020. Dr C emailed manager 3 as he was concerned about the social worker’s suggestion, during her assessment visit, that they had to apply to CoP. There was no response to this email. The Council did not reply that there was no need to apply to CoP.
• Conversation – 24 August 2020. The social worker advised Dr C that the matter had to be referred to CoP. Dr C questioned this and said this was not the plan he agreed with managers 2 and 3. The social worker said that the managers’ plan was not workable and CoP was the only route available.
• Conversation with OPG – 22 October 2020. The social worker told the OPG that she was carrying out a mental capacity assessment and best interest decision for recommendation for CoP to be approached to ensure that Article 8 rights were protected.
• Email – 25 October 2020. Dr C emailed manager 3 and told her they had to apply to CoP for a best interest decision if they wanted to supervise visits. In the meantime, they had no legal power to prevent abuse by supervising visits. Manager 3 did not reply and did not explain that Dr D had the power to supervise visits and that she did not need to apply to CoP to do this.
• Mental capacity assessment – November 2020. The document said safeguarding enquiries had been made and concluded that an approach to the CoP by the attorney was the ‘recommended outcome’.
• Best interest decision – November 2020. The conclusion was that ‘in light of the conflict between the siblings’ an application to the CoP may need to be considered. There was no mention of the fact that Dr D had the power to supervise contact if she thought that was in Mrs E’s best interests.
• The best interest decision sent to the OPG said evidence should be documented with a recommendation that presentation at the CoP is required.
91. I note that there is no evidence that, after the initial plan was agreed on 17 July 2020 the Council ever told Dr C that Dr D had the power, under the LPA, to supervise contact if Dr D thought this was in Mrs E’s best interests. Instead all the advice Dr C received was that Dr D had to apply to CoP.
92. I note that neither the capacity assessments nor the best interest decision said that Dr D had the power to restrict contact if she judged it to be in Mrs E’s best interests and that there was no need to apply to CoP.
93. Also, when Dr C questioned by telephone or email whether the advice that he had to apply to CoP was correct, as it was different from the advice he had been given by manager 3 on 17 July 2022 that Dr D could use her LPA to supervise contact, the Council never assisted him or assured him that an application to the CoP was not necessary.
94. I can make a decision on the balance of probability and I uphold Dr C’s complaint that the Council gave him advice that Dr D had to apply to CoP if she wanted to supervise contact. If the Council is saying that this was not its advice and Dr C somehow misunderstood everything that was said to him, then I say there was fault in the Council’s communications and its communications were misleading and poor.
95. I have also considered the injustice and remedy.
96. Dr C says the Council’s advice meant that he had no other option but to instruct a solicitor and the Council therefore has to reimburse the cost of the legal advice.
97. Attorneys have a duty to abide by the Code of Practice and the OPG could have provided Dr C and Dr D with the advice they sought at any time while Dr C and Dr D were asking the Council to act. There were alternative options Dr C and Dr D could have explored. However, I accept that the Council’s advice contributed to Dr C and Dr D’s decision to instruct a solicitor.
98. Dr C and Dr D suffered stress and anxiety because of the poor communication / wrong advice they received. Dr D thought she did not have the power to supervise contact and therefore could not protect Mrs E as she wanted, for several months. The matter was made worse by the Council’s delay in providing the documents.
99. The Council has agreed to pay Dr C and Dr D £250 as a financial remedy for the injustice suffered.

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Agreed action

100. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Dr C, Dr D and Mrs E in writing for the fault.
• Pay Dr C and Dr D £250 (together, not £250 each).

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Final decision

101. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman