Summary: We have discontinued our investigation into Mrs C’s complaint about the Council’s adult safeguarding enquiry. Mrs C can approach the Information Commissioner’s Office about her data protection complaints, and there is not enough evidence of fault in the remainder of her complaint to justify further investigation.

The complaint

1. The complainant, whom I refer to as Mrs C, complains about how the Council conducted a safeguarding enquiry after receiving an allegation that her 87-year-old father (Mr B) was at risk of abuse from Mrs C and her sister.
2. Mrs C complains that:
• The safeguarding enquiry was unnecessary, and the Council should have known this because of a long history of unfounded allegations being made against Mrs C by family members.
• The Council sought medical information about Mr B without his consent.
• The social worker who spoke to Mr B appeared to have pre-judged the situation, and asked him questions which Mrs C considered inappropriate and unnecessary.
• The Council refused to provide Mrs C with any details about what she was supposed to have done wrong. It suggested Mr B submit a subject access request using the Council’s website, which he is unable to do.

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The Ombudsman’s role and powers

3. 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
• we could not add to any previous investigation by the organisation, or
• there is another body better placed to consider this complaint.

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

4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information from Mrs C.
6. I considered section 42 of the Care Act 2014.
7. I considered the West Midlands adult safeguarding procedures.
8. I considered the Council’s safeguarding information-sharing agreement with its local healthcare Trust.
9. Mrs C and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

10. Although Mrs C was clearly upset about the Council’s intervention – which was in response to the latest in a list of allegations made about Mrs C since 2018, all of which have been unfounded – this does not mean the Council was wrong to act.
11. Under section 42 of the Care Act 2014, councils have a duty to make enquiries in cases where they reasonably suspect that a vulnerable adult is at risk of abuse. The Council’s procedures say that, in most cases, additional information-gathering will be needed for the Council to decide whether the criteria are met for a section 42 enquiry. This includes checks with partner agencies such as the Council’s local healthcare Trust, with which it has a published safeguarding information-sharing agreement.
12. The Council’s procedure also says it will try and make contact with the adult before deciding whether to start a section 42 enquiry (unless doing so would place them at risk of harm). Where access to the adult is being denied for any reason, this will be referred to a manager.
13. After receiving the allegation, the Council tried to visit Mr B, but Mrs C would not allow it. The Council agreed for her to make arrangements for a telephone call to take place, but she did not do so. As a result, the Council’s social work manager decided a section 42 enquiry was to take place. The Council did not make further attempts to arrange a call with Mr B before deciding this, for which it has already apologised to Mrs C. There is nothing further I can add.
14. Although previous allegations against Mrs C had been unfounded, the Council must treat allegations without prejudice. It was for the Council to decide how to respond to the new allegation while ensuring it met its duty to safeguard Mr B. It is unlikely that, if I investigated further, I would find fault with the Council for making further enquiries to try and ascertain if Mr B was at risk of abuse.
15. The Council has an information-sharing agreement with its local healthcare Trust, and its safeguarding procedures say it should gather and share information with partner agencies before deciding whether an adult is at risk of abuse. It has the power to request such information in certain circumstances, even if there is no consent from the individual. If Mrs C believes that the circumstances of Mr B’s case did not justify the Council seeking information without his consent, she can approach the Information Commissioner’s Office (ICO), which is the organisation best-placed to consider complaints about data protection.
16. The Council’s procedures say it should share the outcome of a safeguarding enquiry with the person who was identified as the potential source of the risk. But there is no requirement to share full details of the allegation. The procedures do say, though, that the ‘person causing harm’ may request to see information about themselves under the Data Protection Act 2018. I assume someone who was incorrectly accused of harm can do the same.
17. This means that, although the Council said Mr B needed to submit a subject access request if he wanted to see his records, it appears Mrs C can request to see information about herself without Mr B’s input. She can make this request directly to the Council, and it will be the Council’s decision whether to disclose the information. If Mrs C is dissatisfied with the Council’s response, she can approach the ICO.
18. For the reasons I have set out above – and under the terms described in paragraph 3 of this statement – it would not be proportionate to investigate
    Mrs C’s complaint further.

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Final decision

19. I have discontinued my investigation. Mrs C can approach the ICO about her data protection complaints, and there is not enough evidence of fault in the remainder of her complaint to justify further investigation.

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Investigator's decision on behalf of the Ombudsman