Summary: There was no fault in how the Council carried out a safeguarding investigation or decided Mr X’s mother did not need an independent advocate. There was fault in how the Council communicated the closure of the investigation, and this fault caused an injustice. The Council has already remedied this injustice and has agreed to give further guidance to its staff.

The complaint

1. Mr X complained about the Council’s response to a safeguarding concern about his mother. Specifically, he complained that;

1. the Council should not have told the police;
2. his mother should have had an independent advocate when examined as part of the investigation;
3. the investigation was not thorough or unbiased;
4. he had no opportunity to respond;
5. the outcome of the investigation was wrong;
6. he was not told the outcome in good time;
7. he was not adequately provided with the relevant documents after the Council’s investigation.

2. Mr X said the Councils actions during the investigation and the outcome caused him significant stress, impacting on his mental health.
3. I will refer to Mr X’s mother as Mrs Y.

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The Ombudsman’s role and powers

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)
5. 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)
6. 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)

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How I considered this complaint

7. I read the complaint Mr X sent along with the documents he provided.
8. I read the Council’s responses to Mr X’s complaint and the case notes they supplied.
9. I considered the relevant policies on the Council’s website relating to safeguarding adults.
10. I also considered the relevant legislation and Department for Health and Social Care’s guidance (the guidance), which sets out the Councils responsibilities for safeguarding under the Care Act 2014.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

Safeguarding enquiries

12. The Council’s policies says what it should do where it believes an adult is at risk of abuse.
13. The policies make it clear the police and the Council work together in a Multi-Agency Safeguarding Hub (MASH). It says police will review all referrals for their own decision making about whether a crime has occurred. The policy says where possible criminal offences have occurred, or where there are immediate safety concerns, the Council will respond to these allegations urgently.
14. The guidance says if it believes an adult is at risk of abuse the Council should carry out enquiries to prevent or stop harm or reduce the risk of abuse. It also underlines the importance of early sharing of information.
15. The guidance does not stipulate the extent of what a safeguarding enquiry must be. It also stresses the aim is to ensure the best interests of the person affected, supported by a social worker if need be. The legislation says it is for the Council to decide the enquiries needed to safeguard the person affected.
16. In terms of safeguarding and the Mental Capacity Act 2005, the Council policy highlights a presumption that adults have capacity in the first instance. It says this is also the case where there is a diagnosis of dementia and other mental health conditions. It describes this presumption as being time and decision specific.
17. The policy also says the Council should consider whether an adult has ‘substantial difficulty’ in being involved in the safeguarding process. In such cases it should consider identifying an appropriate person (such as another family member) or instruct an independent advocate.
18. The policy recognises that adults who cannot make their own decisions can appoint another person to do so, with a Lasting Power of Attorney (LPA).
19. The Council have a policy that’s says it should obtain a person’s consent before taking safeguarding action. It also says where it needs to act in a person’s best interest, consent need not be given if a person lacks capacity.

People alleged to have caused harm (PACH)

20. Unless it would prevent the Council properly safeguarding a person, its policy sets out specific requirements it should do with those people who fall under the category of PACH. The Council should;
• tell them a safeguarding concern has been raised against them;
• inform them the Council has created a record on the database;
• provide them with a privacy notice;
21. After it has completed its enquiry, the Council’s policy says it should update all those involved in an enquiry about the outcome. The Council should also offer a copy of their safeguarding assessment. The policy highlights this can be a redacted copy to protect other’s personal information.
22. The Council should also give the outcome to those who fall into the category of PACH. The policy says, where the Council record the outcome as unsubstantiated, it should remove the record that a person was a PACH. In the case where the Council record a substantiated or partially substantiated outcome, the records should be left open.

Principles of good administrative practice

23. In 2018, we published a document as guidance for councils called principles of good administrative practice. We set out several expectations including;
• responding flexibly to requests in a coordinated way;
• understanding the individual circumstances of a case;
• acting fairly and proportionately.

What happened

24. In late October 2021, care workers providing care to Mrs Y, told the Council about a concern they had about Mrs Y. They said they visited Mrs Y that morning and said she had bruising on her body and did not ‘appear to be herself’. The report says there was blood on Mrs Y’s pillow, and the care workers did not know where it came from.
25. The report said Mr X had scratches on his face and had ‘bruising’. The report said the care workers were concerned ‘there had been an episode’. The report also says the care workers told the Council Mrs Y had dementia.
26. The Council’s case records show the adult social care (ASC) team had a safeguarding planning discussion about the referral. They made initial enquiries relating to Mrs Y’s circumstances. These included contacting Mrs Y’s GP and speaking to the care providers to clarify what the care workers had witnessed and ask about previous care visits.
27. The records highlighted that police had recorded their concerns as ‘ill treatment/neglect’ and had asked they carry out a joint visit with a social worker that day.
28. The Council made a note Mrs X had a diagnosis of dementia and would have difficulty in taking part in the assessment process. It also recorded it did not know what Mrs Y’s capacity to respond to this specific concern was. It said the social worker should consider her capacity during the visit.
29. The case records said if Mrs Y did not have capacity, the social worker should get in touch with her other son (Mr G) who had an LPA, to discuss any further safety planning issues. It highlighted it would not be appropriate for Mr X to do this because he was a potential suspect.
30. According to the Council’s safeguarding report, under the section marked ‘Advocate’, a social worker made a note that Mr G had an LPA. The Council noted Mrs Y would not need an independent advocate because she had support from ‘family and friends’.
31. The report shows the Council had contacted Mr G about its concern for Mrs Y.
32. The case records also highlighted the Council had no previous concerns about harm that could occur between either Mr X or Mrs Y. The evidence shows it had other previous risk factors under consideration.
33. The records also stated Mr X had been in contact with the care provider the previous day, asking if they were aware if his mother had contacted the ASC team about him.
34. That evening, a social worker, and a police officer visited Mrs Y at home. The case records show they;
• spoke to Mr X about what happened;
• inspected the bedroom and examined the bloodstaining;
• spoke to a lodger.
35. the social worker and police officer both spoke to Mr X. The social worker made a note Mr X said his mother must have had a nosebleed and had previously had nosebleeds. The case records show there was a discussion about the position carers found Mrs Y, with Mr X disputing what they had said.
36. The social worker also noted Mr X said he was a ‘binge drinker’ and had fallen the previous week causing his facial injuries. The records reflect the social worker advised Mr X to get a carer’s assessment.
37. The following day, the social worker contacted the care provider and clarified the position care workers found Mrs Y. The social worker recorded this to be in line with Mr X’s version of events. The case records also reflect the social worker then contacted Mr X and Mr X’s brother about care provision for Mrs Y.
38. According to the case records, two days after the referral, a safeguarding advisor from the Council, asked the social worker several questions about Mrs Y’s safety. The records reflect because they thought Mrs Y was not able to protect herself, they recommended the social worker carry out another visit. The records show this was to secure better safety measures for Mrs Y’s and to find out more about Mrs Y’s bruises.
39. According to the records, the social worker said they had not completed a MCA at that point, but did not believe Mrs Y had the capacity to keep herself safe. The record also says he had spoken to Mr G about whether there were any concerns about Mrs Y being at risk of harm.
40. Three days after the referral, the social worker contacted Mr X to let him know he was going to visit Mrs Y that day. The records say the social worker had tried to contact Mr X’s brother on two occasions around this time, but do not say why.
41. Following their contact with Mr X, the social worker re-visited Mrs Y with a health care practitioner. The case records show the visit was to obtain more information about Mrs Y’s bruises. The social worker said they carried out a mental capacity assessment while they were with Mrs Y.
42. The case records show, in the following weeks, the social worker contacted the previous care provider and Mrs Y’s GP. The notes reflect they did this to find out if there had been any previous concerns or if Mrs Y had a history of nosebleeds.
43. In mid-November, the Council held a meeting to discuss the safeguarding referral. The case records highlighted Mr X was upset the Council had conducted a safeguarding enquiry because of wrong information resulting in it believing he was responsible for causing harm. The records reflect the Council had clarified the incorrect information they initially had about the position Mrs Y’s care workers found her.
44. The records also say Mr X gave a reason for why he believed there was blood on Mrs Y’s bedding. The records say a medical practitioner had visited Mrs Y and said there had been no history of nose bleeds. It said because of this the blood was unexplained. It also noted Mrs Y had two small bruises on her arm.
45. In late April, the Council completed the safeguarding report. The report says it was not possible to say conclusively where the blood on Mrs Y’s bedding came from. The safeguarding report said there had been no formal capacity assessment completed on the records. The report says the Council recorded the case conclusion as ‘outcome inconclusive’. It recorded Mr X as being the PACH.
46. With the support of a solicitor, Mr X made a complaint about the Council’s actions in January 2022. In a response the Council sent in February, it said it had closed the enquiry. It later retracted this and told Mr X in March, that the case was nearly complete.
47. The Council took no action on the case between November 2022 and April 2023. The Council closed the enquiry in early May 2022.
48. In September, having not been given an update, Mr X recontacted the Council. It responded and apologised for not telling him about the outcome. It confirmed it closed the enquiry in May.
49. Through his solicitor, Mr X then had a series of exchanges with the Council. The Council accepted it took too long to update him on the outcome and agreed this had caused him distress. It also accepted the time and trouble Mr X experienced in pursuing his complaint. During this exchange, the Council paid Mr X £3,000 in recognition of the distress caused by delays and uncertainty.
50. Mr X remained unhappy the enquiry outcome was inconclusive. The Council said Mr X could place his ‘statement of views’ on the Council’s records. It also agreed that a senior Council officer would review the safeguarding enquiry to try and resolve his complaint.
51. After the review the Council gave Mr X an update on the outcome of the review. The review identified procedural issues for future learning for the Council. This included;
• the social worker had not fully completed the mental capacity assessment;
• the time it took to close the enquiry;
• it hadn’t shared the outcome with Mr X.

My findings

Involvement of the police (a)

52. The ASC team who handle safeguarding referrals work as part of a multi-agency team and this includes the police. The Council have a policy the police make their own decisions about their involvement where a crime may have taken place. It was the police who decided to visit Mr X with a social worker. This was not a fault.

Independent advocate (b)

53. The Council have a policy that presumes everyone has capacity unless shown otherwise. It also says this consideration of whether they have capacity can vary depending on the circumstances at the time. The Council was aware Mrs Y had conditions that may impact on her capacity, and they intended to carry out an assessment at the first visit. The evidence shows they intended to visit Mrs Y on the same day of the referral and the police wanted this.
54. The Council knew Mrs Y would likely have difficulty taking part in the assessment process. The evidence shows the Council intended if this was shown to be the case, it would discuss further safety planning with Mr G who had an LPA.
55. The Council’s policy and the guidance say where there is a need to act in the public interest and this is in the best interests of the person affected, it does not need consent of that person if they lack capacity. The guidance also makes it clear a social worker can support if need be.
56. There was no fault in the Council carrying out the first visit without making any prior arrangements for an advocate to be present. It could not know what Mrs Y’s capacity was and could not make a safe assumption in line with its considerations under the MCA.
57. After that visit but before the next, the social worker recorded they had yet to fully complete a MCA and they had discussed Mrs Y’s case with Mr G. The evidence from the safeguarding report shows the Council recorded that Mr G was acting as an advocate for Mrs Y.
58. Three days after the referral, the social worker and a health care practitioner revisited Mrs Y. Immediately before this the social worker tried calling Mr G but could not contact him. The social worker also called Mr X around this time to let him know he was going to visit that day. On balance I find it is likely the contact was to notify Mr G of the impending visit.
59. Mr G was a suitable person to act as an advocate for Mrs Y and the Council had involved him at appropriate stages. There was no fault the Council did not identify an independent advocate.

The investigation (c-e)

60. Mr X complained about the way the Council carried out the investigation. He said it was not thorough or impartial, and the Council did not give him the chance to respond. He also said the Council came to the wrong conclusion.
61. The Council carried out a home visit the same day of the safeguarding referral. During the initial visit they spoke with Mr X and recorded what he said about a reason for the bloodstaining. They spoke to a potential witness and examined Mrs Y’s bedding.
62. The social worker made further enquiries to clarify what carers had witnessed and corrected the records to reflect the accurate picture when they clarified this point. They also followed up enquiries with Mrs Y’s GP and visited Mrs Y with a health care practitioner.
63. Within days of the referral, a safeguarding advisor examined the circumstances of the report and gave advice for the social worker.
64. The guidance does not direct what a safeguarding enquiry must do but affirms it must be carried out in the best interests of the person affected. It also says that person can be supported by a social worker. There is no evidence of fault in how the Council carried out its investigation.
65. Mr X remains unhappy the Council said the investigation had an inconclusive outcome which means the Council records show he is a PACH. The Council’s policy allows for this.
66. The Council considered the evidence of bloodstaining and considered Mrs Y’s medical history. It decided there was no way to say how the bloodstaining came about for a certainty. From the evidence I have seen this was not an unreasonable conclusion for the Council to come to, and I cannot find fault with it.
67. The Council did not follow its policy in telling Mr X he was a PACH as outlined in paragraph 20 of this decision. Mr X would have been aware at the Council had concerns about him as shown in the case records in November.
68. However, there is no record of when the Council told Mr X and that is fault. This fault caused an injustice because Mr X had a concern the Council was acting on wrong information and the records are incomplete on this.

Post investigation contact (f-g)

69. Following Mr X’s complaint, the Council reviewed the safeguarding investigation. It accepted it had taken too long to close the enquiry and it had not told him the investigation had finished.
70. The Council’s policy also says it should give a copy of the safeguarding assessment to those affected. It also says the Council can redact this to protect personal information.
71. It was fault the Council did not tell Mr X it finished the investigation, but there was not a fault the Council gave Mr X redacted copies of the relevant documentation.

Principles of good administrative practice

72. During Mr X’s complaint, the Council accepted it was at fault in the areas highlighted and made efforts to try and resolve his concerns. This included agreeing a financial remedy for faults identified, reviewing the investigation, and allowing for Mr X to put forward his statement of views. This is an appropriate response and what we would expect to see.
73. The Council have already accepted the fault in not giving Mr X a timely update. I have identified a fault where there is no record on the case notes when it notified him he was a PACH and given a privacy notice.
74. This fault caused an injustice, but I am satisfied the Council has already provided Mr X with a satisfactory remedy for any remaining injustice beyond what I could achieve for him.

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Agreed action

75. Within one month of my decision, the Council have agreed it will remind all staff of its policy about notifying those who fall into the category of PACH.
76. The Council should provide us with evidence it has complied with the above actions.

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Final decision

77. There was no fault in how the Council decided the outcome or how it approached a safeguarding investigation. There was some fault in procedure.

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Investigator's decision on behalf of the Ombudsman