Summary: Mrs X complained that the Council failed to safeguard her daughter Ms X or carry out a proper investigation of her circumstances, which has resulted in delayed distress for Ms X. The evidence shows that the Council acted properly in the light of Ms X’s capacity to make her own decisions about her future accommodation.

The complaint

1. Mrs X (as I shall call the complainant) complains the Council failed to safeguard her daughter Ms X after false allegations of abuse were made by a friend of Ms X. She complains the Council encouraged Ms X in her relationship with the friend and refused to share information with Mrs X even after Ms X gave her consent to share. She says the Council has never been able to explain to Ms X what happened and why it was allowed to happen.

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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 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)
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 evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I spoke to Mrs X. I have not included in this statement all the evidence I have seen.
5. Mrs X and the Council had an opportunity to comment on my draft decision and I considered comments before making a final decision.

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What I found

Relevant law and guidance

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 purpose of a Safeguarding Adults Review, under Section 44 of the Care Act, is to review the practice of agencies in a safeguarding matter and is commissioned by the Safeguarding Adult’s Board when a serious incident of adult abuse takes place or is suspected, with the aim for agencies and individuals to learn lessons and improve how they work. A review must take place under law where the following is met:

• An adult dies as a result of abuse and neglect, whether known or suspected.
• and there is a concern that partner agencies could have worked more effectively to protect them.

8. 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.
9. 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.

What happened

10. Ms X is an adult with some physical disabilities. She has been supported principally by her parents and also at times by the Council’s learning disabilities team.
11. In 2021, when Ms X was living at home, she became friendly with J. The Council’s records show that Ms X’s parents were unhappy about the friendship and concerned that J was manipulating Ms X.
12. In November 2021, after an incident when Ms X had an argument with her father and stayed at J’s flat for the night, J made an allegation to the Council about Ms X’s parents’ treatment of her.
13. The Council started a safeguarding enquiry. A safeguarding officer contacted Ms X who explained she wanted to move out of her parents’ home. The records show the safeguarding officer discussed with Ms X the possibility of holding a family conference so that Mr and Mrs X were aware of Ms X’s feelings. He was clear with J (who messaged him frequently about what Ms X had said to her) that he needed to hear directly from Ms X about her wishes going forward, not via J.
14. After several months of discussion with Ms X about what she wanted to do in the future, the safeguarding officer and a colleague visited Mr and Mrs X at home. Ms X was intent on leaving and said she had found a placement which she intended to move into. The records show that Ms X insisted on leaving despite the safeguarding officer’s suggestion that she try to repair the relationship with her parents.
15. Ms X moved to a flat in another council’s area. Once a transfer had been made to that council’s social care team, the safeguarding officer closed the enquiry. In his report he noted the consideration he had made of Ms X’s capacity. He wrote, “Throughout. my conversations with (Ms X), in my professional opinion I believe that she had capacity to make her own decisions and choices. She was clear and consistent in her views and wishes.”
16. Mrs X says from August 2022 onwards, J and the other people Ms X had thought were her friends began to mistreat her. She says Ms X told her they undermined her and she lost confidence in herself.
17. Ms X returned home to her parents in October 2022. Mrs X says by then Ms X was anxious, required a lot of support and was unwilling even to go into the garden alone. She says in April 2023 Ms X began to work with a behaviour therapist. As a result Ms X began to question what had happened to her and why she had been ‘allowed’, as she said, to leave her parents. In May 2023 Mrs X made complaints on her behalf to the Council.

The complaint

18. Mrs X complained about a lack of openness and transparency from the social care team. She said there was never any abuse of Ms X, as J had alleged, and J had made several other allegations which were unfounded. She said the adult social care team had encouraged Ms X in her desire to leave her parents’ home and had not taken her vulnerability and lack of understanding into account. She said social workers had failed to realise that Ms X was being manipulated. Finally she said Ms X wanted to know why this had been allowed to happen to her.
19. The area safeguarding manager responded to Mrs X. She said it was officers’ understanding that Ms X had capacity to make her own decisions and as Ms X had not given consent to share information with Mrs X, the Council’s response to the complaint would be limited.
20. The safeguarding manager explained to Mrs X the principles of the Mental Capacity Act and the Council’s safeguarding duty under the Care Act. She explained that the Council’s duty was not only to establish if any action needed to be taken to safeguarding someone, but also to support someone with the outcomes they wished to achieve.
21. The safeguarding manager reiterated that she could not respond to some of Mrs X’s complaints on the basis that Ms X was deemed to have capacity to make her own informed decisions. She said staff had considered all the relevant information when they engaged with Ms X. She said finally that if Ms X would consent to meeting to discuss the complaint further, they would be able to discuss the safeguarding enquiry with her.
22. Ms X responded to the Council and said once the Council had sent all the information Mrs X had requested in her complaint, she would like to meet with officers. The Council replied, “As you were central to the safeguarding enquiry and you were engaged throughout, we are unsure what additional clarity we can provide, as you will already be aware of all the relevant information, but we can confirm that (the manager) is able to meet with you.” It added that once Ms X had met the safeguarding manager to talk through the safeguarding enquiry, an opportunity would be made available for a further meeting which Mrs X could also attend.
23. Mrs and Ms X objected to the meeting without Mrs X being present. They said it would be very stressful for Ms X. The Council explained that an independent advocate could attend but the first meeting needed to take place without Mrs X present. After some further expressions of concern by Mrs X, Ms X agreed to meet the safeguarding manager at home on her own to move the process forward.
24. Following a meeting with Mrs X present on 21 September, Mrs X says she expected the Council to write to her again with the answers to her initial complaint. When she did not hear she complained again in November.
25. The Council responded to her in February 2024. It said that the safeguarding manager had said she was willing to provide an additional written response but as Mrs X had not requested one, that had not happened.
26. The Council said its records “evidence ongoing contact where the SGO discussed with (Ms X), on a number of different occasions, if they could contact her parents to discuss the concerns. However, (Ms X) initially refused to consent to the SGO to speak to her parents. The SGO also offered (Ms X) the option of a Family Group Conference, which would have enabled (Ms X) and all relevant family members to talk through all the concerns and identified actions for moving forward. However, at no point did (Ms X) confirm she wished this to be pursued. This remains an option and we would be happy to arrange this.” The Council also detailed its contacts with Ms X where her consent had been sought to inform Mr and Mrs X.
27. The Council said although both Mrs and Ms X had said in the September 2023 meeting that there had been coercion by J, this had never been expressed by Ms X at the time. In response to Mrs X’s point that Ms X would like to know how the situation had been allowed to happen, the Council said this was not something it could answer. It said Ms X “acknowledged on 21st September 2023 that she was aware of the decisions she had made at the time, but now feels that she was being coerced and hence has returned to the family home, where she confirmed she feels safe and has no concerns. (Ms X) is an adult and was deemed to have capacity to make her own decisions. She was supported by SGO’s and a social worker to ensure that she fully understood the decisions she was taking at the time and how she wished to be supported.”
28. In response to Mrs X’s request to know why a Safeguarding Review Board was not held, the Council explained that the events which had occurred did not meet the legal duty to undertake a review.
29. Mrs X complained to the Ombudsman. She said the Council had not undertaken a formal assessment of Ms X’s capacity to make her own decision; it had been slow in responding to complaints; it had not put the matter to a Safeguarding Review Board. She said the process had left herself and Ms X anxious and fearful of what might happen in the future: she had been unable to work because of Ms X’s continued anxiety once she returned home to live. She said the offer of a family group conference had come too late.
30. The Council says that all the evidence led the safeguarding officer who undertook the safeguarding enquiry to believe that Ms X had capacity to make her own decision. It points out that in Ms X’s review in 2020, Mrs X said Ms X would like to live independently in the next few years, so there was no reason to doubt her decision. “As (Ms X) refused her parents’ offers of support with this process decisions were made with (Ms X) one at a time and each decision was checked with her regularly to ensure that she was happy and felt in control and that her needs were met.”
31. In respect of the protracted complaint process, the Council says “The process of arranging this meeting was lengthy because the Area Manager wanted to ensure that she could speak to (Ms X) to gain her informed consent to a meeting going ahead where details of the safeguarding process in her case would be shared with her parents”.
32. The Council says (and has provided documentary evidence to show that) discussions were held on several occasions over the months by the safeguarding officer with Ms X to ensure that she wanted to maintain contact with J, which she continued to say that she did.

Analysis

33. There was no reason for the Council to undertake a formal capacity assessment of Ms X, as Mrs X suggests. The law is clear about the ‘presumption of capacity’ and that someone should not be presumed to lack capacity to make a decision simply because the decision is deemed to be unwise. The safeguarding officer kept clear records of his discussions with Ms X and his view of her capacity to make her own decisions. There is no evidence of fault on the part of the Council here.
34. There was no requirement to hold a Safeguarding Review Board: the circumstances of the case did not meet the criteria.
35. There is no evidence to suggest the Council encouraged Ms X’s friendship with J. The Council has explained the role of the safeguarding officer to Mrs X.
36. Mrs X says she and Ms X want answers other than that “Ms X gave her consent” to find out why this happened to Ms X. I cannot see there is another answer. Ms X is an adult with capacity to make her own decision about where she wanted to live. As such she made the decision, which may have been unwise but was her decision to make, to leave her parents’ house and live elsewhere. When that became difficult, she moved home. The experience caused her and her parents some distress but was not the fault of the Council.

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Decision

37. I have completed this investigation on the basis that there was no fault by the Council in the way it managed the safeguarding enquiry and responded to the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman