Summary: Mrs X complains on behalf of her deceased aunt about the Council’s safeguarding investigation. She says this had a significant impact on her mental health and has caused the family trauma. We find the Council at fault, and this fault caused Mrs X injustice. The Council will apologise to Mrs X, make a payment to her, and make improvements to its service to prevent this happening in future.

The complaint

1. The complainant, who I refer to as Mrs X, complained on behalf of her late aunt, Mrs O, about the Council’s safeguarding investigation. She complained that:
1. the Council agreed with information from the Care Provider which Mrs X says was provably false;
2. the safeguarding investigation did not ask relevant questions; and,
3. the Council did not tell Mrs X or the family about the safeguarding referral or explain the outcome of its investigation.
2. Mrs X said there has been no time to grieve, and there are more questions than answers. She said the family still do not know what happened to Mrs O. Mrs X said this has had a significant impact on her mental health and it has caused trauma to the family.

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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. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

7. Mrs X is Mrs O’s niece. Mrs X represented the complaint to the Council on behalf of Mrs O, who passed away. I consider that Mrs X is a suitable person to represent this complaint on Mrs O’s behalf.
8. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about the complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
9. I considered the relevant policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Safeguarding

10. Under section 42 of the Care Act 2014, councils have a duty to make safeguarding enquiries if they reasonably suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves.
11. The main purpose of a safeguarding enquiry is to decide whether or not the council, or another organisation, or person, should do something to help and protect the adult.
12. The Care and Support Statutory Guidance sets out what a safeguarding enquiry should look like. The guidance says it is for the council to determine the appropriateness of the outcome of the enquiry. A council can stop a safeguarding enquiry if it is satisfied there are no safeguarding issues, or the risk has been managed effectively.

The Council’s safeguarding guidance for staff

13. The Council’s safeguarding guidance for staff says a key point in safeguarding and risk assessments is to “involve the person at risk at all stages as far as possible”.
14. The Council’s guidance says a best practice tip about recording and sharing its safeguarding decision includes “the views of the person at risk or their representatives”. It also says staff are to make sure to update the person who raised the safeguarding concern, and the person at risk, of its decision, and record that it has done so.
15. The guidance says to make sure the person at risk or their representative have been informed of a decision to close a safeguarding enquiry. It says to make sure this has been recorded in the case notes.

The Council’s complaints procedure

16. The Council has a one-stage complaints procedure for adult social care complaints. A complainant can ask the Council to review its complaint response. The Council’s website says:

“If you think that the stage one response to your complaint hasn’t answered all of the points in your complaint, or considered all of the evidence you provided, you can ask that we complete a stage one review of your complaint.”

17. The website says the Council will then assess whether a review is necessary.

What happened

18. Mrs O had three daily care calls from a care agency (which I will refer to as ‘the Care Provider’).
19. In January 2022, the carer attended the morning care call. She believed Mrs O was asleep so did not wake her. When the carer came back in the afternoon, she found Mrs O face down in a pile of vomit, unconscious. An ambulance took Mrs O to hospital. Ambulance staff made a safeguarding referral to the Council.
20. Mrs O passed away the next day.
21. A few days later, Mrs X complained to the Council.
22. The Council’s decision on the safeguarding referral was that it would not progress to a section 42 safeguarding enquiry. The Council’s record of the decision says that the Council had addressed the carer’s actions that day through its investigation of Mrs X’s complaint. It said the Council and Care Provider had undertaken a thorough investigation of the carer’s actions and the Care Provider’s own operational procedures as part of its complaint investigation. The Council decided it would not be justified to progress to section 42 enquiries because the ambulance staff’s concerns had been addressed in the Council’s response to Mrs X’s complaint.
23. Mrs X asked the Council for information under a Subject Access Request. This is how Mrs X discovered that the Council had decided not to complete a section 42 safeguarding enquiry.
24. In its complaint response, the Council partially upheld Mrs X’s complaint because the Care Provider did not perform duties adequately and the carer had not logged the care calls in the Care Provider’s records.
25. The Council said what action it had taken with the Care Provider to address this. It said the Care Provider was taking disciplinary action against the carer, who was suspended.
26. Mrs X asked the Council to review its complaint response. She said the Council did not question in depth the evidence provided for the safeguarding enquiry. She asked for a meeting with the Council to provide additional information for the Council to consider.
27. The Council reviewed Mrs X’s request for a review. It said it decided that a review was unlikely to lead to a different outcome, and declined her request. It said a review is an opportunity to look at the complaint again if the Council had missed something or not addressed the full scope of the complaint. It said it did not think this was the case here. It also said that, because Mrs X said she was complaining to the Ombudsman, it saw no benefit of a review.
28. In response to a later email from the Council, Mrs X said there would have been no reason to ask for a review of her complaint if the Council had provided an opportunity to rectify inaccurate and false information. She also said the Council did not explain its decision not to progress the safeguarding referral to a section 42 safeguarding enquiry.

Analysis

29. The Council told the Ombudsman that it had not had an opportunity to investigate most of these issues through its complaints process.
30. I do not consider this is accurate. The Council provided a complaint response to Mrs X’s complaint. Mrs X asked the Council for a review, which it declined. For this reason, I consider the Council has had adequate opportunity to address the content of Mrs X’s complaint.

The Council’s consideration of information from the Care Provider

31. Mrs X complains that the Council agreed with information from the Care Provider which Mrs X says was provably false (part a of the complaint). Mrs X points out discrepancies in the carer’s account of what happened.
32. The Council says it has never accepted the carer’s statements as fact. It says the discrepancies came from the carer’s statements. It agrees that the carer’s statements cannot stand up to scrutiny. The Council says the Care Provider was not able to substantiate the carer’s version of events which did not match with other evidence.
33. The Council recognises that “the sequence of events … were not handled how they should have been”.
34. I do not find the Council agreed with information from the Care Provider (specifically, the carer’s statement) when it addressed Mrs X’s complaint. I find that the Council passed on the information it had to Mrs X.
35. The Care Provider suspended the carer and is taking disciplinary action against the carer. This is likely to include consideration of the discrepancies Mrs X refers to. The discrepancies are for the Care Provider to investigate with the carer under its internal disciplinary procedures. This is the appropriate way for the bodies involved to challenge the carer’s version of events.
36. For these reasons, I do not find the Council at fault here.

Safeguarding investigation

37. Mrs X complains that the safeguarding investigation did not ask relevant questions (part b of the complaint).
38. The aim of a section 42 safeguarding enquiry is to prevent harm, stop abuse, and safeguard the person concerned. If the issues are only relevant to a person who is no longer at risk, then there is no reason for a section 42 enquiry and the events can be looked at through the complaints process.
39. The Council decided the safeguarding referral did not meet the threshold for a section 42 safeguarding enquiry. The Council investigated this matter, instead, as a response to Mrs X’s complaint. The Council is entitled to do this in circumstances such as this.
40. The Council’s reason for not progressing to a section 42 safeguarding enquiry was that it would not be justified. This is because the Council considered it had addressed the ambulance staff’s concerns within its complaint response to Mrs X.
41. Mrs X was not satisfied with the Council’s complaint response. When Mrs X asked the Council to review its complaint response, she said the Council did not question the evidence in depth. She asked to meet with the Council to provide additional information for it to consider.
42. The Council declined Mrs X’s request.
43. The Council told the Ombudsman that Mrs X could have provided that additional information at any point during its complaint investigation, including when making the complaint and when asking for a review of the complaint.
44. Mrs X was grieving. I find the Council could have been more understanding, and not required her to jump through certain hoops in such a rigid fashion.
45. It is clear that Mrs X had additional information she wanted the Council to consider as part of its investigation into what happened to Mrs O, which was the complaint investigation. The Council could have asked Mrs X to provide this information before determining that a review of the complaint was unlikely to lead to a different outcome, or that there was no benefit to a review.
46. Information about the Council’s complaints procedure is available online. As I have said above, this information says a complainant can ask for a review if they feel the Council has not considered all the evidence provided.
47. I recognise that when the Council declined Mrs X’s request she had not provided the Council with the additional information she wanted it to consider. However, the Council has discretion to consider a complaint review request if it does not meet its strict criteria.
48. I find the Council failed to consider its discretion to allow a complaint review in this case, given that Mrs X clearly wanted to meet the Council and provide additional information that she felt was relevant to its investigation into what happened to Mrs O. I find this was a missed opportunity for the Council to have considered the information Mrs X wanted it to as part of its investigation into what happened to Mrs O.
49. The Council told the Ombudsman that, following Mrs X’s complaint, it had extensive email correspondence with her. The Council said it tried to understand what information did not match the information Mrs X had. I find this would better have been considered in a review of her complaint, rather than in an informal way by email.
50. I find the Council failed to consider all the information Mrs X wanted it to consider as part of its investigation into what happened. This is fault. The Council could have showed it considered all of the information Mrs X wanted by reviewing its complaint response. It chose to decline this.
51. The Council now accepts that its complaint investigation “should have considered any additional evidence [Mrs X] or any other family member had”. The Council accepts that by not doing so, it was at fault.
52. I find the fault caused Mrs X injustice, in that it caused unnecessary and avoidable distress at a time of significant trauma and upset. I also find it caused uncertainty.
53. Mrs X says it is illegal to carry out a section 42 enquiry about someone who is deceased. Firstly, I find the Council did not carry out a section 42 enquiry. Secondly, even if it had, this would not be illegal. It is not illegal to carry out a section 42 enquiry around a person who has died, it is simply not necessary.

Communication about the safeguarding referral and investigation

54. Mrs X complains that the Council did not tell Mrs X or the family about the ambulance staff’s safeguarding referral or explain the outcome of its investigation (part c of the complaint).
55. Mrs X says the first time she learnt about any safeguarding referral was in February when she received information back from the ambulance service regarding her Subject Access Request. She says the Council never told her or the family there had been a referral or investigation of any kind. Mrs X says the first she heard about it from the Council was a reply from the Council in April. She says the Council did not mention anything to do with its safeguarding investigation in its complaint response.
56. The Council told the Ombudsman that it has no record of informing Mrs X or the family about receiving the safeguarding referral. It said because the referral was from the ambulance service, not the family, it would not normally contact the family about any referral where it does not progress to formal section 42 enquiries.
57. I have set out the Council’s guidance for section 42 safeguarding enquiries, including when considering if one is necessary, above. The guidance says staff are to make sure to update the person who raised the safeguarding concern, and the person at risk, of its decision, and record that it has done so.
58. The guidance says to make sure the person at risk or their representative have been informed of a decision to close a safeguarding enquiry. It says to make sure this has been recorded in the case notes.
59. Mrs O passed away before the Council began deciding whether or not the ambulance staff’s safeguarding referral should progress to a section 42 enquiry. For this reason, the Council should have kept Mrs X (or another member of Mrs O’s family) informed and updated about the referral and its decision not to progress to a section 42 enquiry. This is not in line with the Council’s guidance and is fault.
60. The Council now accepts that it could have could have better communicated the progress and outcome of its investigation with Mrs O’s family. It accepts that it should have informed the family at an earlier stage and should have kept appropriate records.
61. It is concerning that the Council says it would not normally contact the family about any safeguarding referral where it does not progress to formal section 42 enquiries, where the referral is not from the family. This is not in line with the Council’s guidance to inform the person at risk (in this case, Mrs O) or her representative (Mrs X) of the outcome of the Council’s decision about a safeguarding referral.
62. I find this fault caused Mrs X injustice, in that it caused avoidable and unnecessary distress, and caused uncertainty.

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Agreed action

63. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the unnecessary and avoidable distress, and for the uncertainty, caused by failing to consider information and failing to notify Mrs X of its decision regarding the safeguarding referral.
64. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £400 to remedy the injustice caused by the faults.
65. This is made up as follows:
• £200 to remedy the unnecessary and avoidable distress, and uncertainty, caused by the faults identified in part b of the complaint; and,
• £200 to remedy the unnecessary and avoidable distress, and uncertainty, caused by the faults identified in part c of the complaint.
66. In arriving at these figures, I have considered the Ombudsman’s published guidance on remedies. I have taken into account the length of time involved here, the severity of the injustice, and the disproportionate impact this had on Mrs X due to the circumstances.
67. Within three months of this decision, the Council has agreed to review its section 42 safeguarding enquiries policy and guidance to make sure that the Council contacts a deceased person’s representative or next of kin with the outcome of any safeguarding referral or decision (in the same way it would if the person at risk was not deceased) and keep them informed.
68. Within three months of this decision, the Council has agreed to remind relevant staff (including managers from the adult social care team and the complaints team) that they must contact and inform the person’s representative or next of kin with the outcomes of safeguarding decisions, even if they did not make the referral themselves.
69. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

70. I have completed my investigation. I uphold parts b and c of the complaint because I find fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent any recurrence.
71. I do not uphold part a of the complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman