Summary: Miss X complained on behalf of her father (Mr Y) about the Council’s handling of safeguarding concerns that he was vulnerable and at risk of harm and neglect due to alleged poor care he received while in residential care. Based on current information, there is no evidence the Council failed to consider all concerns raised in this respect. In any event, there is no evidence Mr Y suffered an injustice as a direct result of the Council’s safeguarding actions, or any other matter it is responsible for. We also found we do not have jurisdiction to investigate some of the matters which form Miss X’s complaint.

The complaint

1. The complainant (Miss X) complains about the Council’s safeguarding investigation into alleged harm and poor treatment suffered by her father (Mr Y) while in residential care at Newfield Lodge (the Care Provider) for a period of six weeks from May 2024. Miss X alleges:
1. The Council failed to properly carry out a suitable safeguarding investigation into referral that Mr Y was vulnerable and at risk of harm following him sustaining an explained head injury.
2. The Council failed to adequately respond to separate safeguarding concerns that the Care Provider failed to take Mr Y out in the community three times each week as agreed. Miss X says this agreement formed a condition to Mr Y not challenging the deprivation of his liberty. She says the failure to meet these has resulted in Mr Y being unlawfully deprived his liberty.
3. The Council failed to provide Mr Y with a care needs assessment, despite multiple requests being made.
2. In summary, Miss X says the Council failed to protect Mr Y from harm while in residential care with the Care Provider. She also says Mr Y’s health has worsened as a result of the alleged fault and his needs now require one to one 24/7 support at his new care home. Miss X also alleges the Council has failed to provide adequate support to Mr Y by not assessing his care needs.
3. As a desired outcome, Miss X wants the Care Provider to be subject to regulatory action. She also wants the Council to provide Mr Y with a care assessment and to reimburse all fees he paid to the Care Provider, as well as the increased care costs being incurred at his new care home.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained;
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B)).

6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
7. We cannot investigate complaints about actions which are not the administrative function of a council. (Local Government Act 1974, section 26(1) as amended).
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
9. 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

10. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance. I also considered comments and additional evidence provided by the complainant and Council before making a final decision.

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My Findings

Background, Law and Guidance

Safeguarding and duty to make enquiries

11. Under section 42 of the Care Act 2014, 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 decide whether it or another person or agency should take action to protect the person from abuse.
12. There is published guidance by the Department for Health and Social Care: ‘Care and Support Statutory Guidance (2015). This provides guidance for local authorities which it should consider when exercising its safeguarding responsibilities under sections 42 to 46 of the Care Act 2014. The aims of adult safeguarding include:
1. Prevent harm and reduce risk of abuse or neglect to adults with care needs.
2. Safeguard individuals in a way that supports them in making choices and having control in how they choose to live their lives.
3. Promote an outcomes-led approach in safeguarding that works for people resulting in the best experience possible.
4. Raise awareness so professionals, other staff and communities as a whole play their part in preventing, identifying and responding to abuse and neglect.

Deprivation of Liberty Safeguards

13. The Deprivation of Liberty Safeguards (DoLs) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
14. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
15. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection. This includes by making a Section 21A challenge, which is a legal process under the Mental Capacity Act 2005 that allows a person who is deprived of their liberty under a DoLS authorisation (typically in a care home or hospital) to have those arrangements reviewed by the Court of Protection. This process is designed to safeguard the individual’s human rights and ensure that their deprivation of liberty is lawful, necessary, and in their best interests.
16. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
17. There are two types of authorisation:
1. Standard authorisations: These are made by the council. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
2. Urgent authorisations: These are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.

Care assessments

18. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
19. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Chronology of events

20. Mr Y began his stay at the Care Provider’s residential care home. He had a fall at the care home during month he began his stay which resulted in a head injury and required treatment at hospital. The Council was not notified of this fall at the time and only became aware following a later safeguarding referral (see below).
21. A few weeks later, the Care Provider applied for a standard DoLs authorisation from the Council. The Council later completed an assessment for the authorisation in which Mr Y stated his intention to challenge this. However, Mr Y agreed to the authorisation on the condition that the Care Provider would take him for three walks in the local community each week. The Council subsequently approved the authorisation on that basis.
22. One month after beginning his stay, nighttime staff at the Care Provider noticed blood on Mr Y’s pillow and was unsure where this was coming from. Records show the Care Provider later found this to be coming from Mr Y’s head and that it then telephoned Miss X to make her aware. The day after, Miss X made a safeguarding referral to the Council about the injury and the Care Provider’s actions due it not offering an adequate explanation as to how this happened.
23. The day after the referral was made, the Council screened this and began making safeguarding enquiries under Section 42 of the Care Act 2014. This included producing an action plan, notifying the Care Provider of this and scheduling a visit to the care home. The next day, the Council took further actions including inspecting the Care Provider’s care records, notifying the police of the injury Mr Y sustained and speaking to both the care home manager and Mr Y directly.
24. During the course of the Council’s investigation, Miss X raised other concerns about the care Mr Y was receiving from the Care Provider. This included concerns about care staff continuously switching on lighting in Mr Y’s room to check on him which disturbed his sleep, Mr Y’s belongings going missing and the quality of nutrition given to him at the care home.
25. The Council subsequently concluded its safeguarding enquiries in respect of the head injury, having determined the cause of this to be inconclusive. Miss X subsequently made a formal complaint to the Council about this outcome and drew its attention to inconsistencies in what the Care Provider had said during the safeguarding process. The evidence shows the Council made further enquiries of the Care Provider in response to Miss X’s concerns.
26. Days later, Miss X made a further safeguarding enquiry to the Council about the Care Provider having not taken Mr Y out for visits into the local community. Miss X stated that Mr Y had made clear that he intended to challenge the Care Provider seeking a DoLs authorisation to the Council when he was assessed at the care home the month prior. However, Mr Y later agreed not to do so on the condition that the Care Provider’s care staff took him for a walk into the local community three times a week. Miss X says this was agreed to by the Care Provider and was a condition of the DoLs authorisation being approved. She says the Care Provider’s alleged failure to comply with the condition resulted in Mr Y suffering an unlawful deprivation of his liberty and breach of his human rights.
27. On and around the same time as the second referral, Miss X raised further concerns of a safeguarding nature. These included the Care Provider’s immediate response to Mr Y’s injury and an alleged failure to share relevant information with emergency services and follow up medical advice. Two days after Miss X made that second referral, she moved Mr Y out of the Care Provider’s care home and into a new residential care home.
28. The Council issued a response to Miss X’s complaint. It explained that while it agreed there were inconsistencies with the Care Provider’s reasoning about how Mr Y had sustained his injury, the cause remained inconclusive at this stage. The Council explained it had shared Miss X’s concerns around nutrition, welfare check-ins and missing items with the Care Provider to address, and that its enquiries with respect to DoLs were ongoing.
29. The same day of the Council’s complaint response, Miss X responded expressing her dissatisfaction with its response. The Council issued a further response to Miss X’s complaint. The Council informed her that its safeguarding enquiries were ongoing and that the relevant officer was actively considering all concerns raised over the two referrals which had been made.
30. Following the end of the complaints process, the Council released a report into the safeguarding allegations which Miss X had made in respect of Mr Y’s time with the Care Provider. This report covered a number of concerns and the Council maintained its earlier conclusion that the cause of the head injury was inconclusive. However, the Council did sustain a number of the concerns, including that the Care Provider did not adhere to medical advice in respect of Mr Y’s second head injury, or in how it relayed information about this to emergency services. The Council also sustained concerns around DoLs and the Care Provider not observing the condition it considered had been agreed prior to it approving the authorisation. Other concerns were not unsubstantiated.
31. The Council shared its report with the Care Provider which made a number of recommendations around the concerns it had substantiated. As to any actions the Council considered were necessary to safeguard Mr X from harm, or the risk of neglect, it noted that Mr Y no longer resided with the Care Provider. The Council did however commit to undertake a review that its recommendations had been complied with by the Care Provider and shared its report with the CQC. Still dissatisfied with the Council’s response and the outcome of its safeguarding enquiries, Miss X brought her complaint to the Ombudsman.

My assessment

Care assessment/premature complaint

32. I recognise part of Miss X’s complaint concerns an alleged failure by the Council to carry out a care assessment of Mr Y’s needs following the safeguarding referrals being made. While I can see evidence of Miss X having asked for a care assessment during the course of the Council’s safeguarding actions, this is not a matter which formed part of her complaint to it. Miss X’s complaints were limited to the Council’s handling of its safeguarding actions. As such, the Council did not investigate and respond to the specific issue of assessing care needs.
33. To be clear, an alleged failure to assess needs under the Care Act 2014 is a matter which falls under our jurisdiction and which we can investigate. However, as set out at paragraph seven (above), councils must first have a reasonable opportunity to consider and respond to such complaints before we investigate. Given the Council has not had a reasonable opportunity to investigate this issue for the reasons outlined above, this part of the complaint is premature and we will not therefore investigate at this stage.

Safeguarding enquiries

34. I have considered the Council’s safeguarding enquiries, the steps it took to investigate the issues raised and the information and documents it collected as part of that process. In my view, the evidence shows the Council did consider each of Miss X’s concerns which she raised over the two referrals she made and so I see no evidence of fault in that respect. This is evidenced by the Council’s report it completed in September 2024 and which informed a number of recommendations it made to the Care Provider. I recognise the Council did not substantiate all of the concerns raised, but I have not seen any reasoning from Miss X about what specifically she says was fault by the Council and should mean its findings ought not to be relied upon.
35. For the above reasons, I do not find fault. The Council has followed the standards we would expect (as set out in paragraphs 10 and 11). In any event, I note the claimed injustice is Mr Y having received poor and unsuitable care and treatment from the Care Provider during the six weeks he resided at the care home. Further, Miss X explains that due to these care failings, Mr Y’s health worsened and this has necessitated increased care and support costs at his new residential care home. Miss X seeks reimbursement of the care fees paid to the Care Provider and the increased care costs on the basis of these alleged injustices.
36. As acknowledged in Miss X’s own complaint documents, these areas of injustice arise due to alleged fault in the delivery of care by the Care Provider. However, the Council is not responsible for the delivery of Mr Y’s care and support. Mr Y is a private client of the Care Provider who self-funds his care. The Council does not commission or fund Mr Y’s care placement and the provision of his care is not therefore an administrative function of the Council which it is responsible for. The Council’s involvement has been limited to its consideration and assessment of safeguarding matters in accordance with its section 42 duty to make enquiries which allow it to determine what action, if any, it needs to take to appropriately safeguard a vulnerable person from the risk of harm or abuse.

Deprivation of liberty safeguards

37. The approval of a DoLs authorisation is an administrative function of the Council and considering Miss X’s complaint relates to issues arising from that process, I considered whether its actions were properly taken. That said, these actions were limited to the Council assessing Mr Y in response to the Care Provider’s application for a DoLs authorisation and it later approving this. Miss X’s complaint does not relate to either of these actions, but rather the Care Provider’s non-compliance with the condition to take Mr Y for walks in the local community, and how the Council responded to this as a safeguarding matter.
38. For the reasons already given, the provision of Mr Y’s care by the Care Provider, which includes its agreements to take him for walks, is not an administrative function of the Council. Further, given Miss X removed Mr Y from the care home two days after making a safeguarding referral about DoLs, it cannot be said that the Council’s handing of this matter from a safeguarding point of view directly caused Mr Y to suffer a significant and personal injustice.

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Final decision

39. I am completing my investigation on the basis there is no fault with the Council’s action. The complaint is not upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman