Summary: Ms X complained on behalf of her mother Mrs Y, the Council delayed completing a care needs assessment, delayed making direct payments and about faults in how it conducted a safeguarding investigation. Ms X says she was caused distress and incurred solicitor and loan costs. The time taken to complete the care assessment does not amount to fault. The original incorrect financial assessment was not due to fault by the Council as it could not have known the figures were gross and not net income. There is no fault in how the Council conducted the safeguarding investigation though it does acknowledge it could have given more consideration to the family dynamics before starting the investigation.

The complaint

1. Ms X, on behalf of her deceased mother Mrs Y, complained the Council delayed completing a care needs assessment, delayed making direct payments due to errors with the financial assessment and about faults in how it conducted a safeguarding investigation.
2. Ms X says this caused distress to her and her mother and she incurred solicitors and loan costs.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Care Assessment

7. Ms X lived with Mrs Y and helped to care for her. Ms X also employed full time carers to assist her mother throughout the day. Ms X says that she had to use some of her own savings to pay for her mother’s care after her mother’s funds were used up.
8. The Council completed a Care Act assessment of Mrs Y’s needs in October 2019. The Council spoke to Mrs Y and Ms X as part of the assessment. Ms X said she would like her mother to have a night carer in case Mrs Y needed help at night.
9. Ms X’s brother, Mr Z was also present for the assessment and spoke to the social worker. His opinion was that his mother did not need a carer for 13 hours a day as they spent most of their time watching television or on their phone.
10. The notes of the assessment show the social worker discussed with Ms X and Mrs Y the amount of care required each day. The social worker suggested 45 minutes in the morning, 30 minutes in the afternoon and 45 minutes in the evening. The social worker also suggested that Mrs Y could attend a day centre where she could meet people and socialise. The notes of the assessment say Ms X did not want her mother to attend a day centre and said she wanted the Council to help pay for the 13 hours of care her mother was receiving in addition to paying for a night carer. Ms X says that her mother rejected the idea of a day centre. The social worker left a financial assessment form for Mr Z to complete as he held the power of attorney for finance.
11. The family decided not to complete the financial assessment form and to continue with the private care arrangements.
12. In January 2020 Mrs Y was admitted to hospital. Ms X contacted the Council to discuss help with respite care. In February 2020, Ms X requested financial support from the Council towards the private care arrangement saying her mother had no money left.
13. Mr Z completed the financial assessment form and sent it to the Council in February along with bank statements. The calculation produced an assessed weekly charge of £1017.71.
14. Ms X contacted the Council in March asking when a new assessment would take place. The Council says there was a backlog of assessment requests waiting for allocation to a social worker. The Council said it priorities assessments based on urgency. It said that even if Mrs Y’s needs had increased she was not high priority because she already had support in place and she did not live alone.
15. Ms X was contacted her local councillor who provided more detailed knowledge of Mrs Y’s case to the service manager. As a result the care assessment was completed on 21 April. The assessment recommended a care package of four double-handed care visits each day. This increased the care from the 13 hours assessed in October 2019 to 51 hours per week. The cost was £1020 per week.
16. Following correspondence between Mr Z and the charging team, the financial assessment was reviewed. It was identified that occupational pension income paid to Mrs Y was gross income and Mrs Y had to pay tax on this income. Mr Z provided a copy of Mrs Y’s tax demand and following a reassessment the Council reduced the client contribution to a weekly charge of £840.18.
17. As the weekly charge was higher than the weekly client contribution, a direct payment could now be made. After receiving the signed direct payment agreement on 29 April a one-off payment was made to Ms X for the period 21 April to 12 May 2020. No further payments were made because Mrs Y became eligible for NHS continuing health care funding.

Safeguarding investigation

18. On 30 April 2020, the local social care team received a safeguarding concern from the District Nursing Team. She reported that Ms X had been rude and obstructive when she had visited to complete an enema with Mrs Y. The District Nurse passed on concerns that Ms X may not be acting in her mother’s best interests.
19. The Council decided that it was in Mrs Y’s best interest for it to engage with Ms X through social work input and not the safeguarding process. The Council closed the safeguarding investigation.
20. On 11 May a further safeguarding concern was raised by Mr Z. The Council phoned Mrs Y’s GP to discuss the situation. He gave his view of the situation and Mrs Y’s health. He said Mrs Y was in declining health and that Ms X’s view of the situation was more in line with the reports of the care workers than the view of Mr Z. He offered to meet with social care, district nurses and the family to discuss Mrs Y’s medication and why it cannot be given under Ms X’s instruction.
21. The Council completed the safeguarding initial screening and made the decision to progress to an investigation due to concerns of over-medication by Ms X. A planning meeting was organised.
22. On 12 May the GP called the Council. He said one of Mrs Y’s carer’s had contacted him concerned that last night Ms X had insisted the carer give more medication to Mrs Y. The GP said immediate action was required. He said that he would speak to Ms X and advise her about the safeguarding investigation and give clear information about the administration of medication.
23. The Council contacted the carers and the district nurse to discuss the situation. Both reported concerns that Ms X was requesting medication for Mrs Y when she is not in pain. The carer also reported what she considered were inappropriate conversations between Ms X and Mrs Y.
24. A safeguarding planning meeting was held on 13 May. It agreed the following key actions:

• Social care to speak to Ms X about inappropriate conversations
• GP to talk to Ms X about medication
• District Nurses to co-ordinate a locked box for medication with the key in a key safe

25. The Council called Mr Z to update him on the planning meeting and the risk mitigation action. Mr Z confirmed he would change the key safe number.
26. The Council telephoned Ms X on 14 May to update her about the safeguarding risks and the mitigation plan. On 15 May the Council attempted to carry out a mental capacity assessment with Mrs Y around her consent for the safeguarding investigation. The assessment could not be completed as Mrs Y was asleep. The GP notified the Council he had received a letter from Ms X’s solicitor about the safeguarding enquiry.
27. Mrs Y died on 17 May. As a result, the Council decided to end the safeguarding investigation.
28. The Council passed the letter from Ms X’s solicitors to its legal team. In response the Council sent copies of the safeguarding enquiry report and minutes of the planning meeting. It said it did this to show Ms X this was an open process with the focus on Mrs Y’s wellbeing.
29. Ms X made a formal complaint about the safeguarding process and that she felt judged and had not been given an opportunity to put her side of the story. She raised concerns about the motives of her brother, Mr Z, in making the safeguarding referral.
30. The Council says it did take the information provided by Mr Z at face value. It says that the strength of Mr Z’s email along with the information from the GP and the carers’ justified the decision to proceed with the safeguarding enquiry at that time. However, it says with the benefit of hindsight, it could have handled the issue with greater sensitivity and curiosity in respect of the relationship between Mr Z, Ms X and Mrs Y. It says where complex family dynamics are evidence, greater thought should be given as to the need and value of a formal enquiry as opposed to a more gentle approach to the understanding of the family relationships and how best to support them to change positively.
31. The Council apologised to Ms X for a lack of sensitivity and for following a process which offered her no vindication. However, it does not feel any payment is due either in respect of the delay in completing the assessment or for Ms X engaging a solicitor.

Analysis

32. Ms X complains about the delay in completing a care needs assessment and making direct payments.
33. The information provided shows the Council was unable to complete a care assessment straight away after Ms X made the request. The Council has explained that it allocates social workers to carry out care assessments on the basis of urgency. The Council had completed a care assessment in October 2019, less than six months earlier. It was therefore aware there was a private care package in place and that Mrs Y did not live alone. It took the view Mrs Y’s case was not urgent. When a councillor made contact and provided more information about Mrs Y’s situation, the Council reviewed this position and a care assessment was carried out.
34. There was delay in this case, however I am not persuaded this was due to fault by the Council. The Care Act Care and Support Statutory Guidance states that an assessment should be carried out over an appropriated and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. I am satisfied the Council did consider the urgency of Mrs Y’s needs and, using its professional judgement, took the view it was not an urgent case. It explained this to Ms X. After receiving new information, it reviewed this decision and carried out the care assessment.
35. The guidance does not give any specific timescale for the assessment to be completed and while it was not carried out as quickly as Ms X would have liked, I am not persuaded the time taken was excessive or in conflict with the guidance.
36. Ms X also complains about the delay in making direct payments. It is clear there was an error in respect of the financial assessment. This occurred because Mrs Y’s income from occupational pensions was treated as net income when in fact it was gross income and Mrs Y has to pay a separate tax bill. I note the financial assessment form does not specify that amounts stated should be net of tax. However, the supporting documentation provided by Mr Z was bank statements which only showed the amount paid. He did not provide statements from the pension provider. I agree with the Council’s view that it was not possible for it to have known the amounts paid were gross rather than net income.
37. I am pleased to see that once Mr Z provided information to the Council about the tax issues, it carried out a new financial assessment and put direct payments in place. The action taken by the Council rectified the issue and I do not consider there is any outstanding personal injustice in respect of this issue.
38. Ms X also complains about the safeguarding process. Concerns were raised about Ms X in respect of the administration of medication and inappropriate comments. The wellbeing of the service user is of central importance throughout the safeguarding process. The process should normally only take place with the consent and engagement of the service user.
39. I am satisfied the Council acted appropriately when the safeguarding referral was made. It has a statutory duty to ensure the necessary enquiries are made when a concern is raised. Within a day, the Council made contact with GP and carers to get their views on the situation. The GP was very clear that urgent action was required and the carers provided information which confirmed Ms X was requesting extra medication for her mother. A planning meeting was held within three days and a visit to Mrs Y carried out withing four days. I am not persuaded there was any fault in these actions.
40. The Council did not contact Ms X directly about the investigation. While I can appreciate how Ms X feels about this, I am not persuaded this is fault. There is no requirement for the Council to notify the alleged perpetrator at the start of an investigation. It should provide the alleged perpetrator with sufficient information to enable them to understand what it is they are alleged to have done and for their views to be heard and considered. There are no set timescales for this to happen. In this case the GP did tell Ms X about the safeguarding investigation. There was no delay by the Council in its actions and the whole process only lasted 6 days due to the death of Mrs Y.
41. I appreciate Ms X was very concerned after speaking with the GP. She told me she was stunned by the comments. She says that the allegations were concocted by her brother and so she sought legal advice. While I can understand why Ms X felt the need to seek legal advice this was her own decision and I am not persuaded the Council should be responsible for any legal costs incurred.
42. The safeguarding investigating was closed without reaching a conclusion due to the death of Mrs Y. The Council can make the decision to end a safeguarding investigation at any time and it determined there was no longer any risk and so it was not necessary or proportionate to continue with the investigation. I find no fault in the decision to close the safeguarding investigation.
43. Ms X feels aggrieved at the outcome of the safeguarding investigation. She says she was not given the opportunity to clear her name and believes that “mud sticks”. In response to her complaint about this, the Council has acknowledged the closure of the safeguarding investigation gave Ms X no opportunity to formally respond to the views of others or to vindicate herself. It said it will ensure her correspondence is held on file to evidence the views of all parties involved in this case. It also confirmed that at no time was Ms X perceived as mad or cruel. It apologised for not taking more time to consider the family dynamics and for accepting her brother’s allegation at face value. It has also explained how it will learn from this case going forward.
44. While I have not found fault in how the Council dealt with the safeguarding investigation, I welcome its consideration of its actions and the impact they had on Ms X. I am pleased to note it has learnt from this situation and that future practice will be improved with the aim of preventing distress to other families in the future.

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Final decision

45. I will now complete my investigation as there is no evidence of fault by the Council causing a significant injustice.

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Investigator's decision on behalf of the Ombudsman