Summary: There is no evidence of fault by the Council in the way it considered the safeguarding concerns raised by Mr X and responded to him. The Council acknowledges it should have provided a review response to Mr X’s complaint and apologises that it did not. Mr X suffered the injustice of uncertainty and frustration because of its failure to do so and the Council agrees to make a payment in acknowledgement of that.

The complaint

1. Mr X (as I shall call him) complains that the Council failed to take seriously the financial safeguarding concerns he raised about his wife’s father (Mr R). In particular he complains the Council’s actions in visiting Mr R have exacerbated the situation between them. He also complains the Council has not properly responded to his complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mr X and the Council, which includes the notes of officers’ visits to Mr R. I spoke to Mr X. Both parties had an opportunity to comment on a draft statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

6. 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)
7. 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.
8. 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.

9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

What happened

10. Mr and Mrs X have provided significant care for Mr R on an informal basis for some years after he had a heart attack. Mr X says in 2021 Mr R had also asked him to “keep an eye” on his finances and so Mr and Mrs X obtained Power of Attorney (POA) for property and finances for Mr R. Mr X also set up telephone banking for Mr R.
11. In 2022 Mr R’s other daughter, whom I shall call Mrs B, moved in with her father when his needs increased. She said this was at his request as he needed more care. Mr X says they became concerned that Mrs B was manipulating her father, particularly in terms of his finances and was also discouraging him from seeing Mrs X. He says it became impossible to speak to Mr R by telephone without Mrs B interrupting or coaching her father’s answers. Mr R told Mr X he was not welcome to visit him again. Mr R asked Mr X to transfer £10,000 to Mrs B. Mr X asked the Council to check on Mr R’s safety but says the officer who visited simply asked him if he felt he was being manipulated, which Mr R denied.
12. In May 2022, after some police involvement which arose from an altercation between Mr X and Mrs B, Mr X raised a safeguarding alert with the Council. He said he was concerned about Mrs B’s influence over Mr R, who he believed had only fluctuating capacity (and he provided examples to corroborate his view). He was concerned about the way she was seeking to estrange Mr R from Mrs X and about her influence over his finances.
13. On 17 May two safeguarding officers visited Mr R and Mrs B. One of the officers talked to Mr R separately from Mrs B. Mr R told them he did not consent to information being shared with Mr and Mrs X: he said he was taking steps to have their POA for finance revoked. The report filed by the officers noted no concerns about Mr R’s capacity. The officers did not have concerns which merited a continuing safeguarding investigation.
14. After the officers left Mr R telephoned Mr X. Mr X says Mr R told him that there had been a “ruling” that Mrs X could visit but Mrs B would be there too if she wished. Mr R said he did not want Mr X to visit at all. Mrs B also told them the officers had advised them to call the police if Mr X tried to visit.
15. On 19 May the safeguarding officers emailed Mr and Mrs X. They said they had advised Mr R to contact the Adult Safeguarding team if he received any contacts or visits which were upsetting: he had also been advised he could seek legal or police advice if he felt under duress and consider a non-molestation order.
16. Mr X emailed the officers on 20 May complaining about the visit. He did not receive a reply. He left a voicemail message on 1 June. He received a letter promising a response by 6 or 7 June. When he did not receive a response by 16 June, he complained formally to the Council.

The complaint

17. Mr X said he had supplied detailed evidence of denial of access and privacy by Mrs B, and the use of lies to manipulate Mr R for financial gain. He complained that the safeguarding officers had ignored the evidence he had given and suggested that Mr R call the police if Mr X approached him or sought contact. He said the officers’ statements had been defamatory and they had made the situation worse than before they visited.
18. The safeguarding manager responded to the complaint on 27 June. He confirmed the advice which had been given to Mr R to call the police if he felt threatened or under duress. He said Mr R was fully capacitated and therefore the role of the safeguarding team was to respect Mr R’s wishes.
19. Mr X was dissatisfied with the response and complained again. He asked why no formal capacity assessment had been carried out; why officers had accepted Mrs B’s lies at face value; why the officers had ignored what he said was detailed evidence of coercion, and how the suggestion to call the police was in any way justified. He did not receive a response.
20. Mr X complained to the Ombudsman in October. He said the Council’s response to his complaint had been inadequate and it had not responded to his second letter. He said the financial coercion of his father-in-law by Mrs B had continued since the visit of the safeguarding officers and the Council should acknowledge its failings and conduct a capacity assessment.
21. The Council said its review response to the complaint had been considerably delayed due to illness and lack of availability of senior staff. It promised a substantive response by 30 January. That did not happen.
22. In its response to our enquiries, the Council says it has been unable to review Mr X’s complaint as the only two officers senior to the safeguarding manager with knowledge of the adult safeguarding processes have been either absent from work or (because of their seniority) lacked the available time to review the matter. The Council says it believes any further response would only reiterate the key message contained in its response of 27 June and therefore it has closed the complaint.

Analysis

23. Mr X said he provided detailed evidence of Mr R’s fluctuating capacity to the Council, but the Council ignored it. However, none of the officers who visited Mr R considered his capacity in doubt and therefore they acted in accordance with the principles of the Mental Capacity Act. It would have been wrong for them to assess Mr R’s mental capacity to make his decision about contact with Mr X or his financial relationship with Mrs B in those circumstances.
24. The Council should have provided a substantive response to Mr X’s further complaint: it did not and acknowledges it was at fault in failing to do so even though any further response was unlikely to change the outcome. It was frustrating for Mr X to await a response which did not arrive.

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Agreed action

25. Within one month of my final decision the Council will apologise to Mr X for failing to provide a response to his complaint and offer the sum of £300 in acknowledgement of the injustice caused.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed this investigation on the basis there was some fault on the part of the Council which caused injustice to Mr X: the completion of the recommendation at paragraph 25 will remedy any outstanding injustice.

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Investigator's decision on behalf of the Ombudsman