Summary: Mr and Mrs X complained the Council failed to inform them of the outcome of a safeguarding investigation, which caused them distress and uncertainty. The Council has accepted fault and apologised. This is appropriate to remedy the injustice caused. The Council also delayed responding to their complaints, which was fault and this caused them further uncertainty. The Council has agreed to apologise and make a service improvement.

The complaint

1. Mr and Mrs X complained the Council:
1. failed to inform them when they were removed as appointees for their son’s benefits; and
2. failed to inform them of the outcome of a safeguarding investigation.
2. As a result, Mr and Mrs X have been caused uncertainty and distress. They seek an apology, for the outcome of the safeguarding investigation to be shared with them and to be restored as their son’s appointees for his benefits.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

7. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
8. The complainants and the Council are given an opportunity to comment on the draft decision and any comments received are considered before making a final decision.

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What I found

Law and guidance

Safeguarding adults

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.
10. 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)

Mental capacity

11. 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.

Best interests

12. 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.
13. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

14. To ensure that information is not unlawfully disclosed to third parties, there is limited detail in this decision.
15. Mr and Mrs X’s adult son, Mr G, lives in a residential setting. Following concerns being raised, the Council carried out a safeguarding investigation on behalf of Mr G. Mr and Mrs X were not informed of this.
16. The Council carried out a mental capacity assessment and found Mr G lacked capacity to consider the question around his finances and so a best interests decision was made on his behalf. The Council notified the Department for Work and Pensions (DWP) of the safeguarding concerns. The DWP removed Mr and Mrs X as appointees for Mr G’s benefits.
17. Mr G’s benefits were then managed on his behalf by a third-party service. Mr G’s savings were also moved to this account, whereas they had previously been in an account managed by Mr X. Mr and Mrs X were not informed of this outcome and found out by accident several months later, which they found distressing.
18. Mr and Mrs X complained to the Council as they said they had no information about why this had happened and had concerns about whether the Council had acted lawfully. The Council responded to say that these outcomes came from a formal safeguarding investigation but did not provide any further detail.
19. Mr and Mrs X sent more complaints to the Council. They asked whether their son’s wishes had been considered and raised concerns that they were not receiving responses to their communications. They did not receive a response.
20. Mr and Mrs X had a representative from an advice service send a complaint on their behalf and this was responded to. The Council sent a final complaint response in August 2024.
21. It said some of Mr and Mrs X’s communications had not been responded to because the Council could not provide the requested information due to confidentiality. It did not uphold their complaint about lack of communication.
22. The Council said that Mr and Mrs X’s son’s feelings were ascertained and represented during the safeguarding process. It did not uphold their complaint that their son’s views were not considered.
23. The Council accepted it should have told them they were no longer appointees for their son’s benefits. The Council said it should not have relied on the DWP to inform them and it should have told them itself. The Council apologised for this.

My findings

24. It is not for the Ombudsman to decide who should manage Mr G’s finances and I have not done so here. If Mr and Mrs X disagree over what is in Mr G’s best interests this would be for the Court of Protection to resolve. I have considered whether the Council followed the processes required of it by the law and guidance. If there was no fault in how it made its decision, I cannot question the outcome.
25. I have reviewed the documents associated with the safeguarding investigation, assessment of mental capacity and the Council’s best interests decision making. The Council followed the procedures required by the law and guidance and was not at fault.
26. There was no fault in the Council’s decision not to inform Mr and Mrs X of the details of the safeguarding investigation while this was underway, as it was gathering evidence.
27. However, the Council was at fault for not informing Mr and Mrs X of the outcome of the safeguarding investigation, which was that they were no longer appointees for Mr G’s benefits. This fault caused Mr and Mrs X avoidable uncertainty and frustration. The Council has apologised to Mr and Mrs X and this is sufficient to remedy the injustice caused.
28. Mr and Mrs X also raised several complaints to the Council and did not receive a response in a timely way. The Council said this was because it could not share ongoing safeguarding information with them. I acknowledge this caused an issue in responding to many of their queries. However months later, the Council sent a more detailed complaint response to their representative. The Council should have responded to these earlier complaints sooner, even if only by sending a holding response. Not doing so was fault. This fault caused Mr and Mrs X further uncertainty.

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Action

29. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Mr and Mrs X for not responding to their complaints in a timely way.
30. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has reminded complaint handling staff that while safeguarding investigations are ongoing, it should still respond to complaints about the safeguarding. If it cannot send a response in full at that time, it should at least acknowledge the complaint and provide a holding response before sending its formal response later.
31. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.

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Decision

32. I find fault causing injustice and have recommended a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman