Summary: Mr X complained the Council started a safeguarding enquiry without completing a formal mental capacity assessment for his mother, Mrs Y. He also says the Council failed to consult with him and his brother during the process. We do not find the Council was at fault.

The complaint

1. Mr X complained the Council started a safeguarding enquiry without completing a formal mental capacity assessment (MCA) for his mother, Mrs Y. He also says the Council failed to consult with him and his brother during the process.
2. Mr X says the Council’s actions have caused distress and upset.

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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. 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 s34H(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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

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

Assessment

8. 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.

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)

Mental capacity assessment

10. 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.
11. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

Lasting Power of Attorney

12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
13. There are two types of LPA:

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

14. This chronology provides an overview of key events and does not detail everything that happened.
15. The Council received a referral in early December 2024 with concerns about Mrs Y’s wellbeing. A social worker visited her a few days later. Mrs Y became agitated and asked the social worker to leave.
16. Mrs Y’s GP made a referral to an NHS mental health team. They said it seemed Mrs Y no longer had capacity and she was presenting signs of dementia. An officer from the team sent a letter to Mrs Y’s GP and said the Council’s adult social care department was still attempting to engage with Mrs Y.
17. The Council spoke to Mr X in January 2025 to get further information about Mrs Y. Mr X has a property and finance and a health and welfare LPA for Mrs Y. Mr X explained Mrs Y needs had declined but she was reluctant to accept support.
18. The Council visited Mrs Y in late January at home with her other son (Mr Z). Mrs Y would not engage and so the Council could not complete a care assessment. Mr Z said he and Mr X were looking into a house share arrangement for Mrs Y.
19. Staff from the NHS mental health team tried to contact Mr X and Mr Z. They also visited Mrs Y. Mrs Y was aggressive during one of the visits and refused to let the members of staff in.
20. The Council decided to complete a joint visit to Mrs Y’s house in late May with a member of staff from the NHS to see whether she needed a mental health assessment. The staff member from the NHS spoke to Mr X about the intention to visit Mrs Y and the ongoing concerns. Mr X said he did not feel the concerns about Mrs Y’s memory were as significant as professionals had suggested.
21. The Council noted during the visit that Mrs Y was experiencing cognitive decline. However, she did not have a formal diagnosis, and she did not want to engage in any assessments or memory tests. It decided Mrs Y did not meet the criteria for a mental health assessment. However, she needed a care assessment.
22. A social worker contacted Mr X and Mr Z separately about Mrs Y in early June. She explained she would complete a care assessment for Mrs Y. Mr X said he did not have concerns about Mrs Y’s welfare. He said he was in the process of arranging for a student to move in with Mrs Y in October to provide her with company.
23. The social worker contacted Mr X and Mr Z after visiting Mrs Y. She explained Mrs Y had said she was considering moving into a care home. She also said she was concerned about Mrs Y’s poor nutrition and her personal care needs. She asked Mr X whether he would consider a care agency or residential care for Mrs Y. Mr X said he did not think Mrs Y wanted or would accept care.
24. The social worker spoke to Mr X in late June. She explained she had attended a multi-disciplinary team meeting at Mrs Y’s GP surgery. The GP said they had been raising concerns about Mrs Y for nearly a year, but little or no action had been taken to address the risks of self-neglect. The social worker said the Council would start safeguarding enquiries as the threshold had been met. The social worker also contacted Mr Z and provided him with an update on the next steps.
25. The Council held an initial safeguarding meeting in mid-July. Professionals agreed the social worker would complete the care assessment. She would also complete a MCA regarding Mrs Y’s capacity to make decisions about her care and support needs.
26. Mr X complained to the Council on the same day. He said it had failed to complete a formal MCA for Mrs Y. He also said it had failed to consult with him and Mr Z during the process.
27. The Council responded to Mr X’s complaint the following week. It said it had an obligation to continue safeguarding enquiries. There was evidence Mrs Y had care and support needs, she was at risk of abuse or neglect, and she could not keep herself safe. It also said it had not yet completed a formal MCA, but the GP had confirmed Mrs Y was likely to be suffering from dementia and it was unlikely she had capacity. Finally, it said it had communicated with him and Mr Z.
28. Mr X referred his complaint to us on 23 July. The Council completed a MCA for Mrs Y the following day.

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Analysis

29. The Council had concerns that Mrs Y was at risk of abuse or neglect and that she appeared to have care and support needs. Therefore, it decided to start safeguarding enquiries. That was a decision it was entitled to take. There is no requirement in law for councils to complete a MCA before they start safeguarding enquiries. The completion of MCA was an action point from the initial safeguarding meeting in mid-July 2025. The Council completed this within the appropriate timeframe. I do not find fault.
30. The Council contacted Mr X and Mr Z several times before it started safeguarding enquiries. It updated them after it had visited Mrs Y. It asked for their views on Mrs Y’s welfare and whether they would consider a care agency or residential care for Mrs Y. It also explained why it was starting safeguarding enquiries. At the time of Mr X’s referral to us, no firm decisions had been made about care arrangements for Mrs Y. The Council was continuing to communicate with Mr X and Mr Z. I do not find fault.

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Decision

31. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman