Summary: There was fault in how the Council considered Mr X’s mother’s capacity to manage her financial and property affairs, after it had concerns. That fault caused Mr X and his mother an injustice and the Council have agreed to my recommendations to remedy this injustice. There was also a delayed response to an allegation of physical abuse, which was also fault, however the Council had already remedied any injustice here prior to our involvement.

The complaint

1. Mr X said the Council took no action when he alerted it to safeguarding concerns he had for his mother, Mrs H, in early 2022. He also said it then did not act quickly enough following an incident involving Mrs H, later that year. He said these delays unnecessarily put her at risk.
2. Mr X said the Council wrongly assessed his mother’s capacity to make decisions about her financial affairs. In addition, he said the Council were wrong not to keep him updated when it concluded an investigation.

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The Ombudsman’s role and powers

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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

5. I spoke to Mr X and considered the information he provided.
6. I considered the Council’s comments and the documents it provided.
7. I considered the relevant legislation.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Safeguarding

9. 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)

Council procedures

10. The Council have a safeguarding adults policy and also operate under the London multi-agency procedures. The policy highlights the principles of ‘making safeguarding personal’ and ensuring actions are both ‘person-centred and outcome focused’.

Mental capacity assessments

11. The Council’s policy says it should assume a person has capacity to make their own decisions before it treats them as being unable to do so. It also says where an adult at risk appears to lack capacity or there is information from others that there is a question about this, then it should complete a mental capacity assessment (MCA). The policy highlights the test of capacity in this case is decision and time specific.

Safeguarding adults- timescales

12. The policy says where there is a concern for welfare of an adult and the Council carries out safeguarding enquiries, provided it has consulted with the adult at risk, in some circumstances it can safeguard the person without the need for any further enquiries.
13. The policy highlights specific response times following receipt of a referral, and these say the Council have:
• 5 working days to hold an enquiry discussion and feed back to the referrer.
• 25 working days to complete enquiry.

What happened

14. Mrs H has three adult children. The Council’s adult social care team had been in contact with Mrs H since 2020. I have reported on background information, but not investigated matters that pre-date 2022.

Safeguarding considerations (pre-September 2022)

15. In August 2020, the Council completed a needs assessment on Mrs H. The Council’s case notes show Mrs H was content with the provision of support she had, which included nightly visits by her daughter (Ms A).
16. In September 2021, the Council recorded a safeguarding concern about a family member who had asked for details about where Mrs H was storing property deeds. The person who made the referral highlighted a concern about the motivation of the person making enquiries. The Council closed the safeguarding concern after it gave advice to the referrer.
17. In October 2021, the Council completed a supported self-assessment with Mrs H, after a period of reablement following her discharge from hospital. The assessor recorded Mrs H was experiencing memory loss and that they had made a referral to her GP about this. The assessor recorded Ms A was her main carer at that point and visited Mrs H each night. The assessor decided Mrs H would need two visits each day, to support her in completing tasks around the home.
18. The assessor also noted the following:
• Mrs H had not asked for independent financial advice;
• Mrs H did not need an advocate because she could communicate her needs;
• there was no lasting power of attorney (LPA), and;
• Mrs H’s children were in dispute about the possibility of financial abuse.
19. In early December 2021, Ms A told the Council about a concern she had relating to Mrs H’s finance arrangements. The report highlights the reasons for her concerns and the Council recorded it gave Ms A advice about how to obtain an LPA.
20. In early January 2022, Mr X wrote to the Council and told said that Ms A was isolating Mrs H, and that she had taken control of his mother’s finances. The Council recorded that it had spoken to Mrs H and that she was content with the current arrangements.
21. In late January, Ms A contacted the Council concerned about a series of discussions she had recently had with her mother. Ms A said there was the possibility of financial abuse. The Council closed this concern saying there was no requirement for any further action after it gave Ms A advice.
22. The Council did not consider an MCA, to examine Mrs H’s capacity to manage her financial and property affairs, at that point.
23. In July 2022, the Council completed a review of Mrs H’s care and support plan. According to the review paperwork, Ms A was no longer able to visit Mrs H each night. The review recommended an additional care visit, each evening throughout the week. It also noted that Ms A would carry on managing Mrs H’s finances.
24. In that review, the Council made a note there was doubt about whether Mrs H could fully participate in the review because of her capacity. It noted Mrs H was ‘sometimes’ able to communicate her own needs and wishes, but she also had her daughter on hand who could support her in the review.
25. The Council did not consider completing an MCA at this point either.

Safeguarding response (September 2022 onwards)

26. In early September, a friend of Mrs H reported concern after an incident where they alleged Ms A had struck Mrs H’s arm. The referrer also said they had concerns about the management of Mrs H’s finances.
27. The Council allocated the referral to a safeguarding enquiry officer two days later.
28. In mid-September, the referrer re-contacted the Council for an update and Mrs H’s social worker replied, saying a safeguarding enquiry officer was dealing with the enquiry.
29. In late September, the safeguarding enquiry officer contacted the referrer and explained she had been on sick leave for a period of the time beforehand. She also said she would initiate formal safeguarding enquiries.
30. The Council then tasked Mrs H’s social worker to carry out safeguarding enquiries about a week later. At the end of September, the social worker contacted Mr X to explain her next steps relating to the enquiries.
31. In mid-October, around five weeks after the initial referral, the social worker met with Mrs H. During this meeting the social worker completed an MCA, in relation to Mrs H’s capacity to make decisions relating to the allegation of physical abuse. According to the assessment, the social worker recorded that while Mrs H had a diagnosis of dementia, she was aware of her decisions and did not require an independent mental capacity advisor (IMCA).
32. The notes also show Mrs H had declined an LPA after the social worker asked her if she wanted to consider one. Mrs H’s social worker and their manager signed the assessment.
33. The Council did not give consideration within this MCA of Mrs H’s capacity to manage her financial and property affairs.
34. The Council’s safeguarding notes record the date of the enquiry planning meeting as being the same date the social worker met with Mrs H. They also show the social worker asked Mrs H if she wanted an independent advocate and that Mrs H had declined this.
35. The notes show Mrs H had asked for her daughter to return documents to her and not to contact her again. The social worker recorded this as an action; to contact Ms A to pass this request on. The notes show, in late October, the social worker took Ms A’s account of an incident between she and Mrs H. The social worker then closed the investigation.
36. In late November, Mr X made a formal complaint about several concerns he had, relating to the Council’s actions. After this but before the Council had replied, Mr X’s solicitor wrote to the Council, querying why it had contacted Ms A after the referral, but not Mr X. They also asked the Council to escalate Mr X’s complaint to the second stage of the complaint procedure.
37. In the Council’s initial reply, in mid-December, it gave Mr X an explanation for how it responded to the safeguarding concern in September 2022. It also said in conclusion, it had referred Mrs H to an independent advocate to support her.
38. In its stage two reply, sent in mid-January 2023, the Council apologised to Mr X for a delay in the initial safeguarding response in September 2022. It also gave an explanation about how it had considered Mrs H’s wishes during its earlier enquiries, and had contacted Ms A because she was the person alleged to have caused harm to Mrs H. It also said it had decided to refer Mrs H for an independent advocate, because of the concerns Mr X had raised.
39. The Council provided me with information that between February and March 2023, it completed another MCA in relation to Mrs H. The specific decisions it considered here included:
• Mrs H’s capacity to decide which children she would like to have involved in managing her day-to-day affairs, and;
• where she would live in the long term.

40. The outcome of this assessment was it decided to appoint an IMCA and an independent advocate to support her.

41. In its response to my enquiries, the Council said when it was aware of concerns around Mrs H’s capacity to make financial decisions in January 2022, it should have completed an MCA at that time.
42. The Council also sent me information about additional training in responding to safeguarding incidents it identified and had already put into place across its teams.

My findings

Safeguarding response (Pre-September 2022)

43. The Council told me it should have considered an MCA after Mr X’s report about the risk of financial abuse in January 2022. Clearly that is a decision it could have taken at that point; notwithstanding, I do not find fault it did not do so at that stage.
44. However, it never considered an MCA to specifically examine Mrs H’s capacity to manage her financial and property affairs when it carried out a review of her care plan in July 2022. In this instance, given the earlier reports about this, it should have done so, as part of her care planning. This is particularly so, because Ms A, who helped manage her finances was then stepping back in her role as main carer. That is fault.
45. Outside of these considerations, I have not found fault in how the Council responded to the safeguarding concerns at that stage. It gave advice to the people who made the reports, and this appears reasonable.
46. I will consider the injustice caused by the fault at paragraph 44 later in this report.

Safeguarding response (September 2022 onwards)

47. The Council accepted there were delays in its response to the allegation of abuse and gave Mr X an explanation for this, along with an apology. That delay was fault, but because the Council apologised, and have delivered additional training, I do not see there is any unremedied injustice which requires any further comment here.
48. I do not see there was any fault that the Council spoke to Ms A and not Mr X after it met with Mrs H. It was carrying out Mrs H’s wishes, and we would expect the Council to speak to the person alleged to have caused harm, unless expressly asked not to.
49. Finally, the Council did not consider Mrs H’s capacity to manage her finances when it went on to complete an MCA in October 2022. This MCA only considered Mrs H’s decision-making relating to the physical abuse allegation. At that point the Council had information that financial abuse was part of the initial concern raised by the referrer, and in not considering this aspect alongside the physical concerns was fault.

The injustice to Mrs H and Mr X

50. Because of the deterioration in Mrs H’s condition, I cannot say whether the Council would have made a different decision to appoint an IMCA in July or October 2022, that it eventually went on to do in March 2023. However, in not fully considering this at the point when it ought to have done, it left Mrs H vulnerable to the possibility of financial abuse for longer than necessary.
51. The faults I have outlined in paragraphs 44 and 49 also caused a significant injustice to Mr X, because it left him with avoidable distress and uncertainty about whether his mother was vulnerable to financial abuse. It also meant he had unnecessary inconvenience in making a complaint to the Council.

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Agreed action

52. To remedy the remaining injustice to Mrs H and Mr X, within one month of the date of my decision, the Council have agreed to:
• Write a letter of apology to Mrs H sent via Mr X for the faults I have identified in paragraphs 44 and 49;
• pay Mr X £400 for the avoidable distress and uncertainty it caused him, and;
• share this decision statement with staff who have responsibility for considering MCA’s.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have now ended my investigation with a finding of fault as outlined in paragraph 44 and 49. That fault caused an injustice and the Council have agreed to my recommendations about how to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman