Summary: Miss X complained the Council failed to act in response to her safeguarding concerns about Mr Y. There was no fault in the Council’s safeguarding response or in the way the Council communicated with Miss X about her concerns. The Council was at fault for failing to signpost Miss X to the Ombudsman, but Miss X was not caused an injustice by this.

The complaint

1. Miss X complained the Council:
• Failed to adequately respond to her safeguarding concerns in respect of Mr Y between September 2021 and August 2022.
• Mismanaged a safeguarding meeting in December 20221 by inviting alleged perpetrators of harm to the meeting and changing the time of Miss X’s attendance without notice.
• Has not communicated with her effectively about the actions it has taken to ensure Mr Y’s safety.
2. Miss X says the Council’s lack of action caused her distress and uncertainty about whether Mr Y is safe.

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What I have and have not investigated

3. I have not investigated Miss X’s complaints about individual social workers and their practice. This is because social work has a professional body, Social Work England, and Miss X can submit her concerns to them.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Ombudsman cannot investigate whether social workers are meeting their professional standards of conduct. Complaints of this nature should be referred to the social workers’ professional body, Social Work England.
7. If we are satisfied with an organisation’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

8. I spoke with Miss X and considered information she provided.
9. I made enquiries of the Council and considered information it sent me.
10. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Safeguarding

11. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

Mental Capacity Act

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 (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

14. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Court of Protection

15. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
16. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions, or orders on financial or welfare matters affecting people who lack capacity to make such decisions; and
• appoints deputies to make decisions for people lacking capacity to make those decisions.

What happened

17. Below is a summary of key information. It is not a comprehensive overview of events.
18. Miss X contacted the Council in early October 2021 with concerns about Mr Y. She told the Council Mr Y was:
• At risk of financial/ emotional harm and exploitation by two family members;
• At risk of self-neglect; and
• Lacking capacity to make decisions and was vulnerable.
19. Miss X messaged the Council two days later with additional details and spoke with the Council by phone.
20. The Council held a safeguarding meeting the next working day to plan its response. It attempted to contact Mr Y by phone but could not reach him.
21. The following day, social workers attempted to visit Mr Y at home. There was no response. Social workers remained concerned and contacted the police. The police declined to conduct a welfare check.
22. A further three days later Miss X contacted the Council and said she had spoken to Mr Y and the police referral was no longer required. The social work team spoke with Mr Y on that day. The Council then conducted its section 42 enquiry and assessment.
23. The social work team manager wrote to Miss X on the same day and informed her of the actions it had taken, including attempting to visit Mr Y, and contacting the police for a welfare check. The manager informed Miss X of the next steps it would take to assess the concerns raised.
24. In November 2021 Miss X applied to the Court of Protection (COP) to obtain deputyship for Mr Y’s financial affairs.
25. In late November 2021 the Council organised a safeguarding meeting. Miss X asked the Council why the alleged perpetrator had been invited. The social worker responded that he had been invited in agreement with Mr Y who was able to make the decision about who would attend. They also informed Miss X the meeting would be split as Mr Y did not wish to attend at the same time as her.
26. Miss X responded to the social worker and reiterated her concerns of financial and emotional abuse from the family member.
27. The safeguarding meeting was held in December 2021, but Miss X did not attend the meeting. The Council says it attempted to call and email her but received no response.
28. Following the meeting, the social worker contacted Miss X by email and requested her availability to discuss the safeguarding concerns. Miss X responded that she would not attend a meeting with the Council and that it could write to her instead.
29. In February 2022 the COP instructed a Special Visitor to conduct a mental capacity assessment of Mr Y.
30. In March 2022, Miss X complained to the Council about how it responded to her safeguarding concerns. She said:
• Mr Y was at continued risk from family members who had entered his home by force and had taken money from him;
• Mr Y was unable to express himself due to his diagnosis of autism;
• Mr Y was at risk of self-neglect and was vulnerable;
• Mr Y had no hot water for several months;
• The social work team had been rude and dismissive in communications;
• The Council had organised a safeguarding meeting and invited the perpetrator of the alleged abuse to the meeting and excluded her from attending.
31. The Council responded two weeks later in April 2022 and said it did not uphold her complaints. It informed her:
• It had undertaken assessments regarding the concerns and found that Mr Y was able to manage his day-to-day life.
• Consulted Mr Y about the concerns and put safeguards in place;
• The matter of financial difficulty had been resolved to Mr Y’s satisfaction and the money owed repaid. All bills would be transferred to another family member.
• The boiler in the house was scheduled for repair within the next week. It had acted once it became aware of the matter.
• The Court of Protection was considering her application for deputyship of Mr Y’s financial affairs;
• In its view the social work team manager had not been rude to her;
• Mr Y had capacity to decide who would attend the safeguarding meeting and the Council organised the meeting in December 2021 in accordance with Mr Y’s wishes;
• It attempted to contact her about the split meeting in December 2021, but she had not responded. It also attempted to organise a further meeting to discuss the concerns, but Miss X did not respond.
• The meeting minutes were not shared with Miss X because she did not attend the meeting and because Mr Y did not consent to the information being shared.
32. In April 2022 the COP’s appointed assessor completed their assessment of Mr Y. A copy of the assessment was sent to Miss X by the Court. The outcome of the assessment determined that Mr Y has capacity to:
• Litigate;
• Manage his property and affairs;
• Execute a lasting power of attorney for property and affairs; and
• Make decisions regarding the sale or rent of the property.
33. Miss X was unhappy with the Council’s response to her complaint and requested a stage 2 review in June 2022. The Council responded and told Miss X it would not consider the complaint at stage 2 as Mr Y had withdrawn consent for Miss X to act on his behalf. The Council signposted Miss X to obtain legal advice about the matter.
34. Miss X remained dissatisfied and brought her complaint to us.

Analysis

Safeguarding investigation

35. I have seen evidence from the Council about the action it took in response to the safeguarding concerns. The evidence shows that when the Council conducted its assessment and spoke with Mr Y, it satisfied itself about the concerns and created a safety plan in partnership with Mr Y. There was no evidence of fault in the Council’s safeguarding investigation and intervention.

Safeguarding meeting

36. There was no fault in the way the Council changed the time Miss X was scheduled to attend the safeguarding meeting in December 2021. Mr Y decided he did not wish to be present in the same meeting as Miss X and therefore the Council acted in line with his wishes.

Information sharing

37. Miss X complained the Council failed to inform her of the outcome of her safeguarding concerns. Miss X was not informed about the outcome of the safeguarding meeting or action taken by the Council because Mr Y withdrew consent for the information to be shared. This is not fault.

Complaint response

38. The Council failed to inform Miss X that she could bring her complaint to the Ombudsman when it declined to consider her complaint at stage 2 of its response. This is fault. However, Miss X was able to bring her concerns to the Ombudsman in any event, therefore she was not caused a significant injustice.

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Agreed action

39. Within one month of the final decision the Council will remind relevant officers when it decides not to issue a complaint response to inform complainants of their right to bring their complaint to the Ombudsman.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I ended my investigation. I have found fault, but Miss X was not caused a significant injustice by the fault. The Council agreed a service improvement to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman