Summary: The Ombudsmen find there were failings in the way a Council and Trust handled a safeguarding referral and a subsequent complaint about the same matter. However, there is no evidence this led to a personal injustice.

The complaint

1. Mr L and Ms E complained about a safeguarding concern raised in September 2019 about their son, Mr N, where they were the alleged perpetrators. They complain:
1. There was no proper foundation for raising a safeguarding concern.
2. Oxfordshire County Council (the Council) failed to adequately explain the safeguarding allegations to them throughout its safeguarding enquiries.
3. It was unlawful for the Council to make its own enquiries about the safeguarding concern as it should have been made to another local authority. Further, after Mr L and Ms E highlighted this issue, the Council continued with its safeguarding enquiries and made a decision which remains on file.
2. In regard to the way their complaints about these matters were handled, Mr L and Ms E complain:
1. Oxford Health NHS Foundation Trust (the Trust) failed to offer them an opportunity to discuss the manner of its proposed investigation.
2. The scope of the Trust’s complaint investigation was inadequate as it did not consider the safeguarding decision.
3. The Trust failed to provide an adequate response to their concerns about the suitability of staff appointed to investigate their complaint.
4. The Trust’s complaint investigation took account of information without giving them an opportunity to comment on it.
3. In bringing their complaint to the Ombudsmen Mr L and Ms E would like:

• Written confirmation that the safeguarding enquiries were unlawful and should not have happened.
• A suitable written apology.
• The removal of all the safeguarding investigation information from the Council’s and Trust’s files.
• Compensation for the distress caused by the safeguarding process and the complaints process.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
6. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered the complaint Mr L and Ms E made to the Ombudsmen and information they provided by email. I also considered information the Trust provided in response to my enquiries. I shared a confidential draft with Mr L, Ms E, the Council and the Trust to explain my provisional findings and to invite their comments on them. I considered the comments and papers I received in response.

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What I found

9. Mr N has needs which require support. Since 2009 he has lived in a care home which provides support for people with learning disabilities and autism. The care home is in Barnet Borough Council’s area.
10. In 2017 the Trust assigned a Social Worker to be Mr N’s Care Coordinator. The Social Worker noted that Mr N had expressed a wish to move from his placement to live independently in a flat.
11. At the end of August 2019 the Council told Mr L and Ms E that Mr N’s Social Worker had assessed Mr N’s capacity to make a decision about his care and support needs and accommodation. The Council told Mr L and Ms E it did not have Mr N’s consent to share the capacity assessment with them.
12. In early September 2019 Mr N sent an email to the Social Worker and asked her to send copies of assessments that had been completed for him that year. Mr N also asked for copies to be sent to Mr L and Ms E at the same time.
13. The Council did not send a copy of the capacity assessment to Mr L and Ms E. It said it would send a copy of the final assessment to Mr N and he could then decide whether to forward it to his parents.
14. In the middle of September 2019 Ms N’s Social Worker raised a safeguarding alert with the Council in relation to a concern about Mr L and Ms E undermining Mr N’s autonomy and frustrating the progress of his care planning.
15. The Council allocated the referral to one its Safeguarding Manager’s. Toward the end of September they determined the referral met the threshold for a safeguarding enquiry.
16. The Safeguarding Manager emailed Mr L at the end of October 2019. They said they would be happy to speak to Mr L on the phone or meet in person to discuss the situation. Mr L replied the same day and asked for specific details of the safeguarding concerns.
17. The Safeguarding Manager and Mr L exchanged emails during November 2019. Mr L’s emails were on his and Ms E’s behalf. Toward the end of the month a Head of Service and Mr L also exchanged emails. The emails focused on Mr L’s and Ms E’s concerns about the validity and appropriateness of the Council’s use of the safeguarding process, and on requests for more detail before he could properly and fairly contribute. Mr L and Ms E also raised concerns about the legitimacy of the Council undertaking safeguarding enquiries due to Mr N’s residency in Barnet.
18. The Council concluded its safeguarding enquiry in early December 2019. It found the concern to be partially substantiated on the basis that Mr N had felt pressure to share information against his long-term wishes. The Council noted a plan to only consider requests to share information on a case-by-case basis, and only in person and not via email. It also said it would offer Mr N the support of a Care Act Advocate for such decisions.

Complaint process

19. At the end of December 2019 Mr L and Ms E complained about the safeguarding process.
20. In February 2020 the Trust allocated the complaint to a Professional Lead Occupational Therapist (OT) and the Head of Adult Social Care.
21. During February and March Mr L and Ms E raised concerns about the appropriateness of the investigators, the scope of the investigation and in relation to data protection issues. The Trust maintained the people it had appointed were appropriate and did not identify any deficiencies in the scope.
22. The Trust continued with its investigation of the complaint and sent a response to Mr L and Ms E at the start of May 2020.

Analysis

Complaint about the lack of proper foundation for raising a safeguarding concern

23. If a council thinks someone might be at risk of neglect or abuse, and cannot protect themselves from those risks, it must make (or arrange for someone else to make) any necessary enquiries. Councils must also decide whether anyone should take any action to protect the person at risk. This is set out in section 42 of Care Act 2014. The Care and Support Statutory Guidance (the Guidance) guides professionals on how to fulfil this duty.
24. Section 14.43 of the Guidance guides professionals to contact the local council as soon as they have any concerns about a person’s safety or wellbeing. It is then for the council to decide whether or not it should do anything to help and protect the adult.
25. The raising of a concern does not mean it will be upheld – that is for enquiries to establish. That an enquiry might conclude there is no risk of harm, and no action to be taken, does not mean it was wrong to raise a concern.
26. The evidence shows Mr N’s Social Worker considered an event in September 2019 in the context of her prior involvement with Mr N. She recorded her view that the event stood in contrast with a previous pattern of behaviour. Further, the Social Worker recorded her concern that the change happened because of an external influence and meant Mr N was at risk. There is evidence to show the Social Worker discussed the matter with a manager who, in turn, discussed it with a Safeguarding Manager. They then decided to raise a safeguarding concern.
27. Therefore, there is evidence to show the professionals properly considered the issue before raising the concern. As I have not found fault in the process followed, I have no call to question the decision the professionals reached.

Complaint that the Council failed to adequately explain the safeguarding allegations throughout its safeguarding enquiries

28. In the middle of September 2019 a Head of Service emailed Mr L and advised that it had raised a safeguarding alert in relation to the issue of Mr N’s consent to share information. They said ‘Specifically, we are concerned that [Mr N] may have given consent under pressure to do so and we have a duty to investigate this’.
29. After the Safeguarding Manager introduced themselves to Mr L at the end of October 2019 Mr L asked for information about the specific concerns they were considering. The Safeguarding Manager replied in early November and said the concern was about information sharing and how it ‘might be used to frustrate the care management process, thus reducing [Mr N’s] agency’. He said this was related to looking at what was causing delays in determining Mr N’s residence, and establishing any unnecessary distress for Mr N as a result of this.
30. Mr L replied to ask for further clarification. The Safeguarding Manager replied in the middle of November 2019 and said there were concerns about control and coercion as Mr N had said he had given consent for information to be shared under duress (having previously not given consent for it). The Manager reiterated an offer to meet Mr L and Ms E or to speak to them about the case.
31. Mr L replied and pressed for more specific details of the allegations. The Head of Service replied and said the concern had been adequately explained and Mr L understood it, as evidenced in his emails. The Head of Service said they doubted any more clarity could be provided before a conversation took place.
32. The evidence available to me shows the Council was clear that the safeguarding concern related to the issue of whether Mr N had properly consented to sharing personal information, or whether he had been coaxed into providing it. I consider these explanations offered an adequate account of the concern. This was sufficient to form a basis for the proposed meeting or telephone call which would have allowed further exploration of the concern and wider context. I do not find fault here.

Complaint that it was unlawful for the Council to make its own enquiries about the safeguarding concern and that, after Mr L and Ms E highlighted this issue, the Council continued with its safeguarding enquiries and made a decision which remains on file

33. Section 42 of the Care Act 2014 notes that it applies in relation to concerns about ‘an adult in its area (whether or not ordinarily resident there)’. In line with this, the Buckinghamshire and Oxfordshire Safeguarding Adults Multi-Agency Policy and Procedures notes, at 7.5:

There are three stages to the process of an enquiry:

1. Commissioning the enquiry
2. Undertaking the enquiry
3. Deciding what action to take in light of the enquiry

Only the undertaking of an enquiry can be delegated by the Local Authority…Stages (a) and (c) must be undertaken by the Local Authority itself.

34. During the local complaints process the Trust accepted that staff should have made the safeguarding referral to Barnet Council as Mr N was resident in its area. It would then have been for Barnet Council to consider whether the referral met the threshold for an enquiry.
35. This did not happen here – in the first instance, or after Mr L and Ms E raised concerns about this point in late November and early December 2019. This was fault on the part of the Council. (While the Council had delegated the day‑to‑day operation of its safeguarding duties to the Trust it cannot delegate its ultimate responsibility for those duties. LGSCO investigate the organisation which is responsible for relevant duties regardless of whether they are provided by another service. This is why the finding of fault is against the Council and not the Trust.)
36. As set out in the Care Act and Guidance, councils need to either make enquiries themselves or can ask others to do so on their behalf. The Trust referred this safeguarding concern to Barnet Council after completing its complaint investigation. As such, it did so in the context of having already completed its own safeguarding enquiry, and in a situation where Barnet Council was not responsible for the ongoing case management of Mr N’s care. The Trust advised that Barnet Council said the concerns did not meet its threshold to be considered under safeguarding procedures. Further, the Trust said Barnet Council advised that, in all likelihood, it would ask the Oxfordshire safeguarding team to investigate if they felt necessary.
37. It is very difficult, therefore, to establish what would have happened if the safeguarding concern had been raised with Barnet Council in the original instance. There is a possibility Barnet Council would have decided the concern did not meet the threshold for an enquiry. Equally, there is a possibility that it may have asked the Council to carry out a safeguarding enquiry on its behalf. Section 14.100 of the Guidance notes that ‘The specific circumstances will often determine who the right person is to begin an enquiry. In many cases a professional who already knows the adult will be the best person…’
38. On balance, the Council’s actions in making enquiries were in relation to a desire to protect Mr N’s welfare and to promote his rights and wellbeing. In practical terms it meant further discussions with Mr N about his wishes, and offering Mr L and Ms E opportunities to give their perspective on the situation. These were proportionate acts in the context of the Council’s overall duty of care to meet Mr N’s needs and promote his wellbeing. As such, while I have found fault, I cannot see that it led to a specific individual injustice.

Complaint that the Trust failed to offer them an opportunity to discuss the manner of its proposed investigation

39. Mr L and Ms E complained at the end of December 2019 and asked for their concerns to be investigated by someone independent of the Trust.
40. The Council and Trust signed a Section 75 National Health Services Act 2006 Partnership Agreement (s75 agreement) on 20 April 2012. This set out how the Council and Trust would carry out aspects of their own responsibilities in a pooled, integrated way. The agreement allows the Trust and Council to use the Trust’s complaints policy (Oxford Health NHS Foundation Trust – Concerns, Complaints & Compliments Policy and Procedure (Revised 16 February 2015)) to investigate complaints about its combined services. I have not seen any evidence to suggest the use of the Trust’s complaints policy in this case meant a fair, thorough and appropriate investigation was not possible.
41. The Trust launched an internal investigation, led by a Professional Lead OT and the Head of Adult Social Care. In February 2020 the OT advised Mr L that she and her colleague would meet the following week to start planning their investigation. She asked for Mr L’s and Ms E’s availability to have a telephone conversation to discuss their concerns in more detail.
42. Section 13 of the Local Authority Social Services and National Health Service Complaints (England) (the Complaint Regulations) notes that organisations must acknowledge complaints within three working days of receiving them. It further notes that, when acknowledging it, the organisation ‘must offer to discuss with the complainant, at a time to be agreed with the complainant (a) the manner in which the complaint is to be handled…’
43. There is no evidence to show Mr L and Ms E were offered an opportunity to discuss the manner in which their complaint would be handled. This is not in line with the Complaint Regulations and is fault.
44. However, the Complaint Regulations do not state that organisations must investigate complaints at the specific directions of the complaints. There will be instances where complainants and organisations disagree about the most appropriate and proportionate way. It is ultimately for the organisation to determine how to proceed. Section 7.1 of Appendix 2 of the Trust’s complaints policy notes that where an approach cannot be agreed at the outset ‘it is best practice to fully investigate the complaint and respond to the complainant’.
45. In this instance, Mr L and Ms E were able to make their views known in terms of what they felt would constitute a thorough and satisfactory investigation. Further, Mr L and Ms E were invited to discuss their concerns in more detail. Mr L and Ms E have also received a decision which set out the organisations’ position and which they have been able to challenge via a complaint to the Ombudsmen. Therefore, I do not consider this fault led to a significant injustice.

Complaint that the scope of the Trust’s complaint investigation was inadequate, as it did not consider the safeguarding decision

46. During the investigation process the Trust was clear that it would not review the safeguarding decision. It said it would look at the legality of the process, the duration of the process and at Mr L and Ms E’s concerns about not being told of the reasons for the referral.
47. As detailed above, the Council accepted it should have referred the safeguarding concerns to another borough to consider. However, it said that in conducting the safeguarding investigation the team had felt they were acting in Mr N’s best interests.
48. The purpose of the safeguarding process was to determine whether Mr N was at risk and, if so, to implement measures to keep him safe. This was considered through normal safeguarding channels and focused on the need to keep Mr N safe. The recommendations it made were not directed against any particular individual but focused on a way of ensuring Mr N’s wishes were properly understood and followed. They would not prohibit Mr N from choosing to share his information with anyone. As such, I cannot see that the conclusions of the safeguarding process, in and of themselves, caused an injustice. It would be inappropriate for a complaint investigation to remove or replace the findings and recommendations of a separate, statutory process and, in so doing, remove safeguards to protect an individual. As such, I find no fault in relation to the Trust’s decision not to consider the safeguarding decision itself.

Complaint that the Trust failed to provide an adequate response to their concerns about the suitability of staff appointed to investigate their complaint

49. In early February 2020 the Professional Lead OT emailed Mr L and noted that she and the Head of Adult Social Care had been assigned to investigate the complaint.
50. Mr L raised concerns with the Trust about the appointed investigators. He asked for details of their relevant knowledge and experience which made them appropriate, including details of relevant qualifications along with information about how many previous investigations they had completed.
51. The OT provided a generic response, stating that she and the Head of Adult Social Care had relevant knowledge and experience.
52. Section 14 of the Complaint Regulations notes that organisations must investigate complaints ‘in a manner appropriate to resolve it speedily and efficiently’. The Complaint Regulations do not comment on how organisations should choose staff to conduct investigations, and it does not set out the requirement for a set level of expertise or experience. Section 4(3) of the Complaint Regulations notes that the functions of the complaints manager may be performed by any person authorised by the responsible body to act on behalf of the complaints manager.
53. Section 4.3 of the Trust’s complaints policy details that staff who handle complaints must attend a relevant half-day training session but does not specify the need for any further training or specific experience. The Trust has confirmed that the OT had attended the relevant training course. The Head of Adult Social Care was new to post and held a dual role with another council and had undergone complaints training with that organisation. As such, the Trust determined they had an adequate, equivalent level of training.
54. I accept that the Trust’s response to Mr L’s and Ms E’s concerns and questions was broad and did not answer their specific points. Nevertheless, it was for the Trust to determine who should conduct its investigation and for it to satisfy itself they could do so satisfactorily. As such, I do not consider the nature of its response here constitutes fault.

Complaint that the Trust’s complaint investigation took account of information without giving them an opportunity to comment on it

55. As detailed above, the Complaints Regulations do not give specific direction about how complaints should be investigated. It is for each organisation to decide how to investigate each complaint in an efficient and effective way.
56. In an email to Mr L in late February 2020 one of the investigating officers noted they were keen to speak to, or meet, him to discuss the complaint. They asked him to send some times and dates when a call or meeting would be convenient.
57. In another email later in the month the officer noted she would prefer to continue the investigation by speaking to Mr L but, if she could not, she would proceed anyway.
58. In its complaint response the Trust detailed who the investigating officers had spoken to and which policies and legislation they had referred to. It provided a rationale for its findings on each complaint. Overall, I am satisfied Mr L and Ms E were afforded appropriate opportunities to participate in the complaints process and present their side of events. Further, the Trust provided a response which included sufficient information to explain its method of investigation and findings. As such, I find no fault here.

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Decision

59. I have completed this investigation on the basis there is no evidence the faults in this case caused an unremedied personal injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman