Summary: Ms C complains the Council took unfounded safeguarding action against her and reached a biased decision. Ms C also complains the Council failed to consider all her complaints. There is no fault in the Council’s decision to start safeguarding. However it is at fault for delay, and the failure to investigate some of Ms C’s complaints. To remedy the complaint the Council has agreed to apologise to Ms C and make service improvements.

The complaint

1. Ms C complains the Council took prolonged and unnecessary safeguarding action about allegations about care for her partner, Mr D. Ms C complains the safeguarding process was biased and officers failed to properly consider her evidence and views. Ms C also complains the Council did not properly consider all her complaints.
2. Ms C says the Council’s actions caused her stress, frustration, time and trouble in dealing with the Council and other bodies to try and state her views and get supporting evidence. Ms C says the Council’s actions have affected her mental health.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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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What I have and have not investigated

5. The Ombudsman has discretion to decide whether a person is a suitable representative. I consider it would be inappropriate to investigate Ms C’s complaints on behalf of Mr D. This is because there is a conflict of interest between Mr D and Ms C as safeguarding action was taken due to concerns about Ms C’s behaviour towards Mr D. I therefore do not consider she is a suitable representative for Mr D about safeguarding. (Local Government Act 1974, section 26A(2))

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How I considered this complaint

6. I considered evidence provided by Ms C and the Council as well as relevant law, policy and guidance.
7. Ms C 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

What should have happened

Safeguarding

8. 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. The duty to make the enquiry is if there is “reasonable cause”. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. (section 42, Care Act 2014)
9. The Care and Support Statutory Guidance, “the Guidance” says domestic violence is a form of abuse whether that be psychological, emotional or financial.

Carers and safeguarding

10. Paragraph 14.45 of the Guidance says “Circumstances in which a carer (for example, a family member or friend) could be involved in a situation that may require a safeguarding response include:…….a carer may unintentionally or intentionally harm or neglect the adult they support on their own or with others.
11. 14.46 Assessment of both the carer and the adult they care for must include consideration of the wellbeing of both people. Section 1 of the Care Act includes protection from abuse and neglect as part of the definition of wellbeing. As such, a needs or carer’s assessment is an important opportunity to explore the individuals’ circumstances and consider whether it would be possible to provide information, or support that prevents abuse or neglect from occurring, for example, by providing training to the carer about the condition that the adult they care for has or to support them to care more safely. Where that is necessary the local authority should make arrangements for providing it.”
12. Paragraph 14.49 “Other key considerations in relation to carers should include:
• involving carers in safeguarding enquiries relating to the adult they care for, as appropriate
• whether or not joint assessment is appropriate in each individual circumstance
• the risk factors that may increase the likelihood of abuse or neglect occurring
• whether a change in circumstance changes the risk of abuse or neglect occurring”

Kent and Medway Safeguarding Adults Board – Multiagency Safeguarding Adults Policy, Procedures and Practitioner Guidance for Kent and Medway – June 2022, “the Policy”

13. The Policy says initial safeguarding enquiries will take into account a range of factors to decide the next steps which include:
• a decision about whether the case reaches the criteria for a Statutory s42 Enquiry;
• reliability/credibility of the information received and need for any emergency or other protective action…..;
• impact of the alleged abuse on the adult(s);
• capacity of the adult(s) in relation to decisions regarding the safeguarding;
• consideration of advocacy at the earliest possible point. The Council has to arrange an independent advocate to represent and support an adult who is subject to a safeguarding enquiry if the adult has substantial difficulty on being involved in the process and where there is no other appropriate person to represent them;
• vulnerability of the adult(s);
• length of time it has been occurring;
• information about the person(s) alleged to be responsible for abuse or neglect.
14. The Policy says the Council should give feedback to the person alleged to have caused harm. It says,
15. “An evaluation should be carried out as to whether it is safe to share information about the complaint with the person allegedly responsible. ………
16. Providing information on the nature and outcomes of concerns to people alleged to have caused harm also needs to be seen in the wider context of prevention; for example, information can be used to support people to change or modify their behaviour. The person/organisation that is alleged to be responsible for abuse and/or neglect should be provided with sufficient information to enable them to understand what it is that they are alleged to have done or threatened to do that is wrong and to allow their view to be heard and considered. Whilst the safety of the adult remains paramount the right of reply should be offered where it is safe to do so. Decision making should take into consideration:
• The possibility that the referral may be malicious
• The right to challenge and natural justice
• Relationship dynamics
• Whether it is safe to disclose particularly where there is domestic abuse
• Compliance with the Mental Capacity Act 2005
17. Feedback should be provided in a way that will not exacerbate the situation or breach the GDPR.”

Mental Capacity Act

18. The Mental Capacity Act 2005 (MCA) 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.
19. It says a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Best interest decision making

20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Court of Protection

21. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases when there is disagreement which cannot be resolved in any other way and decide what is in the person’s best interests.

Complaint handling

22. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently.

What happened

23. Ms C and Mr D live together. Ms C is the main carer for Mr D who lives with dementia. Ms C has Lasting Powers of Attorney (LPA) for both Mr D’s financial affairs and his health and welfare matters. This means she can make care and financial decisions on behalf of Mr D.
24. On 17 November 2023 a health professional made a safeguarding alert. The alert related to several matters which included:
• verbal abuse from Ms C to Mr D;
• a lack of understanding Mr D had dementia and he could not control his behaviour;
• Ms C cancelling future visits with the health professional which left both Ms C and Mr D with no external support.
25. The Council drew up an action plan on 23 November which included within a week to:
• meet with Mr D on his own and complete a care needs assessment;
• to presume Mr D’s capacity but if there was doubt to complete a capacity assessment, and refer Mr D to advocacy services.
26. The Council allocated an Investigating Officer (IO) on 2 January 2024. By this time it does not appear the Council had been in contact with Mr D or Ms C. The IO arranged a professionals meeting on 9 January to share information. At this point Mr D had entered a nursing home for respite care which Ms C had arranged. Ms C says this is because she had collapsed with exhaustion and the care home identified was one Mr D was familiar with and had been to before. Officers spoke with Mr D at the nursing home and identified further concern around Mr D’s medication, and his sleeping arrangements at home.
27. Ms C spoke with the IO on 10 January. Ms C was upset the IO had visited Mr D without her knowledge and without her being there. Ms C said she was under strain and felt criticised by the Council about her care of Mr D. Ms C explained how, and why she distrusted the NHS and prescribed medication, their sleeping arrangements and the support Mr D had tried. Ms C said she was reluctant to have people visit their home because of the way it looked. Ms C expressed how difficult she was finding caring for Mr D and the services she was accessing for help.
28. The records note the IO was trying to talk to Ms C about the services available for her as a carer, but Ms C was insistent she was ineligible for support. The IO asked to visit Ms C but she declined saying that Mr D would be returning by the end of the week and it was not convenient. The IO agreed to contact Ms C in the next week to arrange a visit.
29. On 18 January the IO called Ms C asking to arrange a time to visit and offered Ms C an advocate. Ms C refused and the IO asked Ms C to keep her updated. On the same day Mr D went to A & E. The IO tried to call to speak with Ms C but could not do so. On 19 January Ms C contacted the Out of Hours social care team saying that she could no longer cope with caring for Mr D and would be making him homeless. Ms C again expressed how desperate she was for help and that she could not care for Mr D.
30. On 21 January the police visited Ms C. The police told the Council Ms C needed support and an advocate. The police said the house was small but in a satisfactory condition.
31. Mr D went into hospital on 23 January. The next day the IO referred Ms C for a carer’s assessment and spoke with Ms C. Ms C again said how she was struggling. The IO explained she had referred Ms C for a carer’s assessment and was arranging an assessment bed for Mr D for when he left hospital. This would allow the Council time to complete an assessment of Mr D’s care needs and explore services to meet those needs. Mr D moved into an assessment bed on 26 January. The hospital facilitated the move on the basis Mr D agreed.
32. On the same day the Council developed an early intervention plan. This included:
• visiting Mr D on 1 February to complete a mental capacity assessment on his ability to decide about his care, living arrangements, and care on leaving the assessment bed;
• meet with Ms C and her advocate to discuss the concerns and future support.
33. The Council records Ms C agreed to attend a meeting if she could see an agenda in advance and minutes of a previous meeting. However Ms C later cancelled an arranged meeting. The IO spoke with Ms C’s advocate to see why Ms C could not attend as she was integral in the decision making. The carers unit also fed back to the IO that Ms C had refused a carer’s assessment as she did not feel well enough.
34. The Council assessed Mr D as not having capacity to decide where he should live. The Council referred Mr D for an advocate. On 15 February Ms C agreed to attend a meeting and had a carer’s assessment on 21 February. The carer’s assessment identified Ms C said Mr D could return home if the Council provided extra care of eight hours per week. Ms C also said she was finding travelling to the assessment unit difficult both in time, and money, due to the distance. Ms C asked if Mr D could move to a respite facility that he had used before.
35. On 28 February Ms C complained about Mr D’s care at the assessment unit. The Council said because of the ongoing safeguarding investigation it could not respond to the complaint and would write to her once safeguarding ended. A few days later following an assessment to consider whether the new care home was suitable Mr D moved from the assessment unit to Ms C’s preferred residential care home on 7 March.
36. Ms C attended a meeting with the Council on 14 March. This was an opportunity for Ms C to express her concerns and for the Council to explain how it could help Ms C and its duty to safeguard Mr D. The Council explained it had received several concerns from different sources about the relationship between Ms C and Mr D. The Council advised that because of its concerns, and as Ms C held LPAs it would need to alert the Office of Public Guardianship (OPG).
37. The Council also explained about care home funding. Mr D had enough money to fund the care home for a year. After this should the Council become involved there was no guarantee Mr D could remain at the care home.
38. The Council also provided Ms C with information and signposted her to services to support with her mental health. Ms C was unhappy with the Council’s accusations.
39. The outcome of the safeguarding investigation was that some allegations were confirmed but the risks were mitigated by Mr D’s placement. The safeguarding was closed but could be reopened should any further concerns arise. It does not appear the Council told Ms C about the closing of its investigation.
40. Ms C made a second complaint in May 2024 about the safeguarding process, the attitude of the IO, and the way the IO treated her. The Council responded to the complaint saying it had acted according to the law and the IO’s actions were proportionate and in line with the safeguarding process. It did not however revisit Ms C’s complaint about the assessment unit, or ask if she still wanted the Council to investigate those matters.
41. After the safeguarding ended Mr D moved back home with Ms C with care arranged by Ms C and funded by Mr D. In September 2024 Ms C had a further carer’s assessment and was offered several services including:
• a telephone line for emotional support;
• face to face support group for Ms C;
• a care agency to provide a service so Ms C could go out once a week.
42. The OPG assigned an investigator who found no reason to revoke the LPAs. Ms C remains responsible for Mr D’s finances and decisions related to his health and welfare.

Was there fault causing injustice?

Safeguarding process

43. It is important to recognise this was a complex situation and I appreciate the Council’s actions caused Ms C distress and affected her mental wellbeing. I also understand Ms C and Mr D have a long enduring relationship which they have lived without the need for outside involvement. They have made decisions together and chosen how to live.
44. However once Mr D started to show signs of dementia and concerns were raised about his welfare the Council had a duty to follow its safeguarding procedures. The protection of the vulnerable adult is the priority where there are allegations of abuse.
45. The Council is at fault for a delay in progressing an action plan it created in November 2023 after receiving a safeguarding alert. I consider this delay caused Ms C injustice. This is because Ms C was raising concerns that she was struggling and Mr D went into hospital on two occasions before the Council acted. While I cannot say now had the Council acted safeguarding would not have progressed, there is a level of uncertainty the outcome for Ms C might have been different.
46. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and sound reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint because a person disagrees with a council’s decision.
47. I welcome the Council’s detailed record keeping. This both showed the steps officers took and their decision making. The Council:
• spoke with Mr D several times;
• provided advocates for both Mr D and Ms C;
• when officers could they completed a mental capacity assessment of Mr D;
• spoke with Ms C on several occasions;
• offered Ms C a carer’s assessment on several occasions;
• completed a carer’s assessment for Ms C;
• spoke with other involved people/professionals as part of the safeguarding process;
• considered information from various sources including Ms C before making safeguarding decisions;
• produced action plans which officers then followed or explained why they could not follow them at the time;
• made a considered and proper referral to the OPG.
48. I therefore find no fault in the Council’s safeguarding actions.
49. However the Council under the grounds of natural justice should have told Ms C when the safeguarding was closed. While I am aware the care home told Ms C this was the case she was entitled to receive this information independently and in accordance with the principles of natural justice and the Council’s safeguarding procedures. The failure to do so caused Ms C frustration.

Support to Ms C

50. I appreciate that Ms C has been under stress and because of her experiences has found it difficult to trust officers. I have however found no fault with the officers involved or the IO. They have sought to try and engage with Ms C, offered her carers assessments and been sensitive to Ms C’s needs. It is difficult to investigate allegations of abuse without causing upset. I have seen no evidence that officers acted unprofessionally. Their actions were in line with the Care Act and the Care and Support Statutory Guidance. I appreciate Ms C will be disappointed with this but officers have a statutory duty to investigate concerns of abuse even if it causes distress to the alleged perpetrator.
51. Ms C asked the Council to move Mr D into a different residential home. The Council was not responsible for Mr D’s placement at the assessment unit and therefore cannot be held responsible for the initial decision. Once Ms C raised her concerns about the assessment unit and asked the Council to move Mr D, he moved within a week. I therefore find no fault in this part of the complaint.

Complaint handling

52. The Council is at fault for failing to revisit Ms C’s complaint about care provided to Mr D at the assessment unit. After the Council completed the safeguarding it should have written to Ms C asking whether she wanted the complaints investigated. The failure to do so was fault and contrary to what the Council agreed to do. Ms C has the injustice of the Council not considering all her complaints.
53. I found no fault in how the Council responded to Ms C’s second complaint. While Ms C may not agree with the outcome of the complaint the Council provided a reasoned proportionate response.

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Action

54. I have found fault causing injustice. I consider the following agreed actions are suitable to remedy the complaint.
55. Within one month of the final decision the Council will:-
1. apologise to Ms C for the initial delay in the Council responding to concerns, failing to advise her the safeguarding had closed, and not following up on her complaints;
2. send a letter to Ms C formally advising her that the safeguarding has closed;
3. write to Ms C asking whether she would like her concerns about the assessment unit considered and take appropriate follow up action.
56. Within three months of the final decision the Council will:-
1. review why there was a delay in the implementation of the initial safeguarding action plan and if relevant what actions the Council will take to prevent this from occurring in the future;
2. review why there was no follow up to Ms C’s first complaint which the Council put on hold until the outcome of the safeguarding investigation. If relevant what actions the Councils will take to prevent this reoccurring.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice. I have now ended my investigation and closed the complaint based on the above agreed actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman