Summary: Miss X complained the Council failed to properly consider a safeguarding matter she raised, it failed to speak to her about it and the Council wrongly judged that she had a mental health illness. We found there was fault in the failure to speak with Miss X and for delay in the complaint process, but the safeguarding matter was dealt with properly.

The complaint

1. Miss X complains that the Council:
• failed to contact her and have regard to her views, as her mother’s main carer, when she raised a safeguarding report about her mother.
• wrongly judged that she had a mental illness or impairment, and discriminated against her on this basis.
• recommended to her mother that she revoked Miss X’s Lasting Power of Attorney (LPA).
• took too long to deal with her complaint about the matter.
2. Miss X complains the way the matter has dealt with has caused upset and offence and affected her relationship with her mother.

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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 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

5. I spoke to Miss X and considered her complaint and the information she provided. I asked the Council for information and I considered its response to the complaint.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Equality Act

7. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Mental Capacity

8. Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely implications and outcomes of the decision.

Lasting Power of Attorney

9. A Lasting Power of Attorney (LPA) is a legal document that lets someone appoint one or more people (known as 'Attorneys') to help them make decisions or to make decisions on their behalf.
10. Miss X and her brother are both named as Attorney’s in an LPA for their mother (Mrs Y). They hold Property and Finance and Health and Welfare LPAs. The LPAs allow one or both Attorney’s to make decisions for Mrs Y. The property and Finance LPA allowed decisions to be made for Mrs Y with her consent while she has mental capacity or on her behalf if she lost mental capacity. The Health and Welfare LPA allows decisions to be made for Mrs Y after she loses capacity.

How the Council dealt with Miss X’s safeguarding Alert

11. Miss X raised a safeguarding alert on 24 October 2021. She explained there was significant disruption within the family and there was a risk of psychological abuse of her mother, Mrs Y. Miss X stated she was on the verge of carer breakdown and she had made the decision to step back from supporting Mrs Y with immediate effect in all walks of her life. Miss X stated she had sought a non-molestation order against her sister.
12. Two social workers visited Mrs Y on 2 November 2022. The Council‘s records stated the visit was to understand the situation, to discuss the court case and the conflict between Miss X and her sister. It was also to establish Mrs Y’s understanding of the LPA’s that were held and Miss X’s wish to stand down from her caring role. The Council’s file notes show these issues were discussed with Mrs Y. The outcomes of the meeting were noted. These related to day-to-day support and dealing with removing Miss X as an Attorney. The actions were to be discussed with Miss X’s brother, as he was also an Attorney.
13. On 5 November a social worker telephoned Mrs Y to follow up. They discussed what they talked about at their meeting. The conversation included mention of Miss X’s health. The social worker also suggested that Mrs Y would benefit from an independent advocate.
14. The Council stated in 2021 it carried out formal mental capacity assessments and found Mrs Y had capacity. The officers who visited Mrs Y did not consider this had changed; Mrs Y still had capacity to make decisions about the issues being discussed.
15. The Council arranged for an advocate to visit Mrs Y to discuss her wishes in February 2022. The advocate had no concerns about Mrs Y’s capacity and made notes of what Mrs Y’s wishes were.

Contact with Miss X

16. A social worker tried to reach Miss X by telephone without success on 25 October 2022. A colleague emailed Miss X on 28 October to follow up. She acknowledged the safeguarding alert Miss X had made. She stated they would contact her mother directly. It suggested they speak on Monday 1 November.
17. Miss X replied asking for a call to her landline. She stated she had turned her landline off earlier as she could not face anyone contacting her.
18. On 28 October Miss X wrote to the Council. In her letter she explained she was exhausted and in need of an urgent respite break. She explained ongoing family issues. In her letter she stated she had not resigned as Mrs Y’s Attorney yet, but she stated there was a huge conflict of interest because of the difficulties with her sister and this now prevented her from carrying out her duties in Mrs Y’s best interests.
19. On 2 November a social worker emailed again, apologising that they had not yet been able to speak. The officer stated she would contact her again when she had an update. In reply Miss X asked the social worker to email first if they wished to speak to her.
20. The Council says an officer emailed Miss X on 11 and 12 November to arrange a time to speak to discuss the concerns she raised. On 12 November Miss X stated she needed more notice, and expressed concern that, to date, she had been excluded from the safeguarding matter she instigated. Following this email, the social worker agreed to speak to Miss X on 22 November.
21. On 18 November Miss X wrote to the Council stating she had resigned as Miss X’s Attorney due to issues caused by her sister and because social services failed to include her in the safeguarding enquiries. Miss X stated she had been advised to take six months out to help her deal with grief from the loss of another family member. Miss X set out her views about the family situation and ongoing abuse.
22. The Council indicated that because of the letter of 18 November, no call took place as planned on 22 November. The Council did not tell Miss X that it would not be calling her.
23. Miss X complained on 29 November about her exclusion from the safeguarding enquiries and for the failure to call her as planned on 22 November. Miss X also complained that social services intended to remove her as an Attorney.
24. The Council emailed again on 29 November to apologise for the confusion. It explained after the letter of 18 November, officers had understood Miss X no longer wished to talk to a social worker. Miss X told me she considered it likely the Council had intentionally made a decision not to call her.

Miss X’s complaint

25. The Council acknowledged a complaint from Miss X on 2 December. On 3 December the Council stated, after checking its records, it found the safeguarding investigation was still open. It explained it would not consider the complaint until the safeguarding team had completed this.
26. The Council acknowledged further correspondence on 9 December in which she reiterated concern about being excluded from the safeguarding process.
27. On 21 December the Council stated the safeguarding investigation remained open and would take precedence over the complaint response. The Council stated officers would write again with an update about the safeguarding investigation.
28. On 7 March the Council wrote to Mrs Y with the outcome of the safeguarding enquiries. Miss X’s brother provided a copy to her. It noted that social workers had spoken to Miss X’s brother and Mrs Y and had attempted to speak to her. Part of the report stated Mrs Y ‘recognised that [Miss X] was unwell at present’. The report noted Mrs Y’s wishes.
29. Miss X asked the council to remove the sentence “[Miss X] is unwell”. The Council explained this was a comment by Mrs Y but as it was not pertinent to the safeguarding concern it would be removed.
30. Miss X reiterated her complaint once the safeguarding matter was completed. She set out her concerns that her mother had not been safeguarded from her sister’s actions and that Miss X had been subject to discrimination on the basis of mental health. Part of Miss X’s complaint was that a social worker had impressed upon her mother she should remove Miss X as an Attorney and the impression given was that Miss X was mentally ill. She complained social workers had made a decision that she was mentally ill without any communication with her.
31. Miss X stated her mother had a diagnosis of dementia, she was likely confused and may have been coerced into believing Miss X was mentally ill by her sister. She considered it highly probable that it was the social worker who recommended that Miss X removed her as an Attorney because the social worker had arranged an advocacy service. Miss X stated she was offended and considered the social worker’s actions to be mental health discrimination.
32. Since Miss X’s complaint she told me that Mrs Y had been a care home and she explained she was involved in dealing with Mrs Y’s affairs. She explained the difficulties within the family that continued. These are issued that have occurred since Miss X’s complaint, so we have not investigated them. Not all of the new issues Miss X raised involved the Council.

Miss X’s role as an Attorney

33. The Council told us that it believed from Miss X’s original safeguarding report and comments, that she wished to resign as Mrs Y’s Attorney. It stated Miss X’s brother had reported that Miss X wished to resign, and Miss X had made disclosures about her health; that she was on the verge of carer breakdown. This was why the revocation of her role as Attorney was discussed with Mrs Y.
34. Miss X told us she had not stated she wished to cease being her mother’s attorney when she originally made the safeguarding alert. She only stated she wished to resign on 18 November, after the officers had discussed revocation of her Attorney role. Miss X later decided to place this decision on hold and she has remained an Attorney.

Was there fault by the Council

35. I found the Council’s actions in response to Miss X’s safeguarding alert were appropriate. Officers visited Mrs Y and spoke with Miss X’s brother. It is clear that the Council had regard for the information and concerns Miss X raised.
36. Overall, it is evident that attempts were made to contact Miss X and to discuss the situation with her too. It was unfortunate that a telephone conversation did not occur. I found it was fault that the Council did not carry out a planned telephone call to Miss X on 22 November. The Council says Miss X’s letter dated 18 November suggested she wanted to step back and rest for six months, so it caused some confusion. However, having arranged the call, it should have gone ahead with this or told her if it had decided not to. I note the Council apologised for this subsequently.
37. Although it would have been preferable to speak to Miss X, as the person who raised the alert, I do not consider it affected the outcome that no call took place. The Council acted on the alert and addressed the issues with Mrs Y and with Miss X’s brother. It is important to note that Miss X’s mother, Mrs Y, was found to have mental capacity to reach her own decisions about the issues that are the subject of this complaint. Social workers sought to understand Mrs Y’s views about the concerns raised. After discussion, they helped Mrs Y take actions that she wished to. This was an appropriate approach which was focussed on Mrs Y.
38. I particularly note that the social workers sought independent advocacy for Mrs Y. This too was appropriate as it was clear that relationships within the family were strained. An advocate can objectively work with someone to ensure their needs are understood and their own wishes are known.
39. The summary of the safeguarding enquiries and the recording of a telephone call that Miss X obtained from her mother’s telephone show that there was discussion about Miss X’s health. Miss X complained that the Council discriminated against her on the basis of mental health; a disability. Disability is a protected characteristic under the Equality Act. Mrs X has a disability as defined by the Equality Act. She provided evidence that she had a diagnosis of chronic anxiety and depression. A carers assessment also noted that Miss X had a history of poor mental health and depression. I considered if the Council’s actions properly took account of Miss X’s individual rights in the way it dealt with the safeguarding alert she raised about her mother.
40. I found that the information provided to the Council, both from Miss X herself and when officers spoke to Mrs Y indicated Miss X was under strain. Miss X had stated she was on the verge of imminent carer breakdown and she had been traumatised by the actions of her sister. Mrs Y had stated Miss X was unwell. I do not consider it was fault for the Council to refer to this. I recognise that an officer referred to Miss X having ‘mental health difficulties’. Miss X was offended by this, but given the information the Council had been provided with, I do not consider it was fault for the Council to address this issue or make this statement. I do not consider the way officers considered the safeguarding alert or referred to her health impinged on Miss X’s own rights. It was not fault that the Council discussed whether it was appropriate for Mrs Y to remove Miss X as an Attorney. I say this because Miss X had indicated that she would need to step back from assisting her mother in all walks of her life.
41. I note that the Council placed Miss X’s complaint on hold while it continued to consider the safeguarding matter. This was not fault. However, it then took some time to resolve the complaint when it could be considered. I note the Council apologised for this in its final complaint response.
42. For the reasons I have set out above, the Council was at fault for not calling Miss X about the safeguarding matter when it had arranged to do this. It was also at fault for delay in resolving her complaint, once the safeguarding matter had been resolved. The Council apologised for these points. However, I do not consider these areas of fault caused Miss X a significant injustice.

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Final decision

43. There was fault by the Council. I do not consider the fault we identified led to significant injustice. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman