Summary: Mrs X complained about the way the Council investigated and responded to safeguarding allegations made against her in her role working with adults with care and support needs. We have ended our investigation as it is for the provider Mrs X works for to investigate and decide what action to take. We cannot achieve a meaningful or different outcome by investigating further.

The complaint

1. Mrs X’s representative, a solicitor, complains about the way the Council investigated and responded to safeguarding allegations made against Mrs X and the way it responded to her complaint about this. She says it failed to keep her informed of progress, did not give her an opportunity to respond to the allegations and failed to notify her of the outcome. She says this caused her distress and worry and may impact upon her ongoing employment.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I have considered the information provided by Mrs X’s representative and some initial information provided by the Council.
4. I gave the Council and Mrs X the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

5. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
6. The Care and Support Statutory Guidance sets out that:
• When an employer is aware of abuse or neglect in their organisation, then they are under a duty to correct this and protect the adult from harm as soon as possible and inform the local authority, Care Quality Commission and Clinical Commissioning Group where the latter is the commissioner. Where a local authority has reasonable cause to suspect that an adult may be experiencing or at risk of abuse or neglect, then it is still under a duty to make (or cause to be made) whatever enquiries it thinks necessary to decide what if any action needs to be taken and by whom. The local authority may well be reassured by the employer’s response so that no further action is required. However, a local authority would have to satisfy itself that an employer’s response has been sufficient to deal with the safeguarding issue and, if not, to undertake any enquiry of its own and any appropriate follow up action.
• The employer should investigate any concern (and provide any additional support that the adult may need) unless there is compelling reason why it is inappropriate or unsafe to do this. 
• Employers who are also providers or commissioners of care and support not only have a duty to the adult, but also a responsibility to take action in relation to the employee when allegations of abuse are made against them. Employers should ensure that their disciplinary procedures are compatible with the responsibility to protect adults at risk of abuse or neglect.
7. The Council is part of the Rochdale Borough Council Safeguarding Adults Board. The Board has a procedure and guidance for allegations management where allegations are made about professionals who work with adults with care and support needs. This sets out that as a general principle, persons subject to an allegation should be informed, by their employer, that an investigation will be carried out unless the initial risk assessment indicates this disclosure might compromise an investigation or increase the risk of harm.
8. If the police decide the threshold Is not met for a criminal investigation, the employer is still responsible for undertaking an internal investigation into their worker to identify whether they believe their worker poses a risk of harm to adults with care and support needs.

What happened

9. Mrs X is contracted to work for a care provider. The Council received four safeguarding concerns regarding Mrs X’s behaviour.
10. In August 2021 Mrs X’s representative complained to the Council regarding the way it had investigated safeguarding allegations made against her. They complained the Council had not complied with its own safeguarding procedures. It had not kept her informed of the status of enquiries, not given her the opportunity to respond to the allegations and added that she should be given an opportunity to respond to the findings.
11. The Council responded in early September 2021. It said the provider followed the allegation management process as allegations were made by service users. It was for the provider to keep Mrs X updated and to liaise with her as part of the process. It said it had undertaken safeguarding enquiries in relation to the allegations from a relative and had shared these with the provider
12. Mrs X’s representative replied and said they remained concerned Mrs X had not been informed of the nature of the allegations, was not provided with any evidence in support of the allegations and was not given an opportunity to respond to them.
13. The Council responded and reiterated it was for the provider, not the Council to engage with Mrs X as her employer.
14. Mrs X’s representative remained unhappy. They complained the Council had failed to respond to the complaint in the 10 days set out in its complaints procedure and remained of the view the Council had not followed the correct procedure during the safeguarding enquiries. They asked to go to the next stage of the complaints’ procedure.
15. The Council investigated the complaint at the next stage of its complaints procedure.
16. It set out the four allegations. In summary:

• In late May 2021 the Council received a safeguarding concern from a third party regarding Mrs X’s behaviour to a service user. The Council made enquiries with the service user about the allegations and shared this information with the care provider, who Mrs X works for. The service user decided they no longer wanted support from Mrs X and so the Council concluded the safeguarding enquiry as there was no ongoing safeguarding concern for this service user.
• In early June 2021 the Council informed Mrs X it had received a safeguarding concern regarding Mrs X’s behaviour towards a relative who lived with Mrs X. An officer spoke with Mrs X who denied the allegations. The Council says an officer telephoned Mrs X and provided her with the outcome of the safeguarding enquiry in July 2021 which was, on the balance of probabilities, that the abuse was substantiated. The relative no longer lives with Mrs X.
• In June 2021 the Council received a safeguarding concern from the provider in relation to another service user Mrs X worked with. The Council contacted the service user who confirmed they had made the allegation. The Council also spoke with the service user’s safeguarding advocate. The Council said the allegation was substantiated on the balance of probabilities given the disclosure, a witness statement from another service user and the pattern of behaviour evidenced through other enquiries. The Council shared the allegation with the provider to inform their internal investigation.
• In July 2021 another service user spoke to the provider and advised they no longer wanted support from Mrs X. They raised concerns about Mrs X’s behaviour. They chose not to receive any further support from Mrs X.

17. The Council explained its managing allegations procedure makes it clear providers are responsible for investigating the conduct of their employees. The Council’s duty was to assess the needs of the adult service users for protection from abuse and neglect. It said it was the provider’s responsibility as Mrs X’s employer to carry out an internal investigation to consider what action to take.
18. Mrs X’s representative wrote to the Council again in late December 2021 in response to the investigation. They said Mrs X denied the allegations. She denied an officer had told her the conclusion of the investigation into allegations from a relative in July 2021. They said Mrs X had not been afforded the opportunity to respond to the allegations.
19. The Council responded in early February 2022. It explained the purpose of safeguarding was to decide what action was needed to help and protect an adult where abuse or neglect was suspected. It was not to prove beyond reasonable doubt abuse or neglect had occurred or to apportion blame. Information was shared with the provider Mrs X worked for so it could undertake its own investigation and manage any potential risks.
20. Mrs X’s representative spoke to a Council officer then wrote to the Council. They were particularly concerned the Council had told Mrs X’s employer the allegations were substantiated given the allegation was received and acknowledged rather than proven and an outcome recorded. They said they understood no outcomes were yet reported in relation to the allegations against Mrs X and the burden on proving the allegations rested with the provider. They said they understood the Council had not yet been advised of the outcome of the provider’s investigations.
21. Another solicitor contacted the Council in late April 2022. They sought clarification as to what decisions relating to Mrs X were made by the Council. They raised concerns the Council had, on the balance of probabilities, reached conclusions the allegations were substantiated without giving Mrs X the opportunity to respond. They believed the correct position was that the Council had referred the allegations to the provider to investigate further and determine an outcome.
22. The Council responded in May 2022. It said the information from two service users was sufficient to substantiate from their perspective they had been caused harm and the safeguarding outcomes were concluded in July and August 2021. In relation to the allegation from Mrs X’s relative, the outcome was enough to substantiate that from their perspective they experienced harm. In relation to the fourth allegation the Council advised two others had indicated the service user received verbal abuse from Mrs X. The service users were no longer at risk of harm, so the Council’s safeguarding enquiries were concluded. It said the provider’s investigation into Mrs X’s behaviour was an employment matter.
23. In a further letter the Council said it had not made a decision the allegations were substantiated in the sense of having been proved on the balance of probabilities. The Council had not made a decision or finding that blame was to be attributed to an individual but had referred the allegations to the provider to investigate further. It said the system used required the Council to record an outcome of substantiated, unsubstantiated, or inconclusive in terms of whether the service user had suffered harm and was not a substantiation that the alleged perpetrator had caused harm. The decision as to whether the alleged perpetrator caused harm was a matter for the employer who was expected to conduct an investigation to determine whether the allegations were substantiated, not substantiated, or unfounded. It acknowledged the terminology used by the Council’s system was not helpful and it would address this.
24. Mrs X’s representative complained to us.

My views

25. The Council’s role in relation to the safeguarding concerns was to safeguard the adults involved and to prevent or reduce the risk of harm. It has done this. It did not carry out a full s42 safeguarding enquiry in relation to three of the allegations. It made preliminary enquiries and was satisfied there was evidence of safeguarding concerns but that the adults involved were no longer at risk of harm as they were no longer receiving services from Mrs X. It referred the allegations to the provider, in line with the managing allegations procedure to investigate what if any action should be taken in relation to Mrs X’s future role with the provider.
26. The Council carried out a s42 investigation into the allegations raised by Mrs X’s relative. The Council was satisfied the allegations were substantiated. It says it spoke with Mrs X to get her views and later advised her verbally of the outcome. Mrs X disputes this. I do not intend to investigate this further as Mrs X is now aware of the outcome and there is insufficient remaining injustice to warrant any further investigation.
27. In line with the procedures, it was for the provider who Mrs X worked for, not the Council, to investigate Mrs X’s actions, to keep Mrs X updated and to determine what if any action should be taken. These are personnel matters for the provider to deal with, and we cannot look at the actions of the provider in relation to these.
28. The language used by the Council, stating the allegation was substantiated, has caused some confusion. It has accepted this and has already agreed to amend its system to address this. There is nothing else we could achieve by investigating this further.
29. There were some short delays in the Council responding to the complaint however the Council did respond and followed its complaints procedure. It is unlikely the delays were sufficient to amount to fault and there is insufficient injustice to warrant any further investigation.

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Final decision

30. I have ended my investigation as there is no worthwhile outcome I can achieve, and further investigation is unlikely to achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman