The Ombudsman's final decision
Summary: Ms X complained the Council carried out inaccurate mental capacity assessments for her daughter, Ms Y and did not respond correctly to safeguarding concerns. Ms X said this left Ms Y open to sexual and financial exploitation, caused her considerable stress and damaged her mental health. We will not investigate Ms X’s complaints about the mental capacity assessments as these have now been brought to the Court of Protection. We do not find fault with how the Council dealt with the safeguarding concerns.
The complaint
Ms X complains the Council failed to carry out accurate mental capacity assessments for her daughter, Ms Y in March 2020 and did not respond properly to safeguarding concerns. Ms X also complains about the way the Council dealt with her complaint; she said the response was factually incorrect, brief, and incompetent. Ms X says the Council’s failings left Ms Y open to sexual and financial exploitation which has caused considerable stress and harm to her mental health.
What I have investigated I have investigated how the Council responded to safeguarding concerns, and how it responded to Ms X’s complaint.
I have not investigated how the Council assessed Ms Y’s mental capacity in March 2020. I have explained why at the end of this statement.
The Ombudsman’s role and powers
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) We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) 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)
How I considered this complaint
I spoke to Ms X and considered all the information she has provided. I also considered all the information the Council has provided. This includes: Copies of Ms Y’s mental capacity assessments from March 2020 A claim to the Court of Protection The safeguarding documents for Ms Y between March 2020 and November 2021 The Council’s response to Ms X’s complaint.
Ms X and the Council commented on a draft decision and I considered their comments before making this final decision.
What I found
The Mental Capacity Act 2005 Having mental capacity means being able to make your own decisions. The council will assess someone to see whether they lack capacity to make specific decisions because of illness or disability.
The Mental Capacity Act 2005 applies to people who may lack mental capacity to make certain decisions. The Code of Practice to the Mental Capacity Act (the Code) is statutory guidance which councils generally need to follow. It sets out steps organisations should take when considering whether someone lacks mental capacity.
Both the Mental Capacity Act and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
The council must assess someone’s ability to make decisions when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
When assessing if someone has capacity, the assessment must only examine a person’s capacity to make a particular decision when it needs to be made. This is particularly relevant to people with fluctuating capacity.
The Court of Protection The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
The Court of Protection may need to become involved in difficult cases or cases where there is a disagreement which cannot be resolved in any other way.
The Court of Protection: decides whether a person has capacity to make a particular decision for themselves; makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions; appoints deputies to make decisions for people lacking capacity to make those decisions; The Care Act 2014 Section 42 of the Care Act 2014 requires that each local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who.
The Council’s Safeguarding Adults policy and procedures The Council’s policy for safeguarding adults sets out a six-stage process for dealing with safeguarding referrals: Identifying a Safeguarding Concern – alerts can be raised by anyone and should be recorded when they come in.
Completion of the Safeguarding Adults Concern (SAC) form and submission to the Safeguarding Adults Team.
Fact finding and information gathering – this includes making enquiries to the person affected to get their views, wishes and consent.
Analysis of the fact finding and information gathering process.
Agree an outcome decision from the fact finding and information gathering process.
Decision to close the SAC or progress to further safeguarding activity The policy goes on to say if a crime has been committed or suspected, this should be reported to the police. It sets out a person-led approach which is based around the views of the adult concerned.
What happened Y began receiving support from the Council’s Adult Social Care department following a Learning Disability Assessment in January 2019. This was reviewed the following year.
In February 2020, Ms Y presented to the Council as homeless after leaving the family home and was placed in supported accommodation.
In March 2020, the Council carried out Mental Capacity Assessments for Ms Y relating to sex and consent, and accommodation, care and support. These assessments concluded Ms Y had capacity to make her own decisions in these areas. However, the assessment relating to accommodation, care and support noted Ms Y’s parents disagreed.
In June 2020, the Council received a safeguarding concern relating to Ms Y and an allegation of physical assault and financial abuse. In the following weeks, the Council completed two SAC forms and created an action plan to deal with this. The action plan included talking to Ms Y’s parents about a Court of Protection application, potentially moving Ms Y to a new accommodation, and reporting incidents to the police.
Between June 2020 and August 2021, Ms X says Ms Y experienced a series of events that sparked concern for her.
Beyond the physical assault and financial abuse mentioned above, these included: Suicide attempts Overdoses Going missing The Council received another safeguarding concern relating to Ms Y in August 2021 and completed another SAC form.
In September 2021,Ms Y was assessed by an independent psychiatrist and an Adult Speech and Language Therapist. These found Ms Y to be lacking capacity to make some decisions for herself and cast doubt on the accuracy of the mental capacity assessments that took place in March 2020.
During this time, the Council completed two further SAC forms and created an action plan to deal with these referrals in October 2021. This involved including Ms Y’s parents in ongoing decisions and meetings and following up with the police who continued to deal with the referral.
The Council continued to discuss safeguarding matters relating to Ms Y with the police and other relevant agencies throughout the remainder of 2021.
Ms X complained to the Council. Ms X said: She had concerns about how the Council had responded to Ms Y’s vulnerabilities and she did not believe she was being safeguarded or protected effectively.
The Speech and Language Therapist, and psychiatrist’s reports of September 2021 showed Ms Y did not meet the threshold for capacity to decide who she should have contact with.
The psychiatrist who assessed Ms Y in September 2021 confirmed the capacity assessments of March 2020 were incorrect.
Ms Y continues to put herself at risk and in dangerous positions. The Council’s Learning Disability Team has caused significant harm to Ms Y by discriminating against her disabilities. The Council has ignored Ms X trying to highlight Ms Y’s difficulties for over 19 months.
The Council wrote to Ms X in November 2021 to respond to her complaint. The Council explained: Ms Y was appointed a social worker in January 2019 and they completed an Adult Needs Assessment (to determine if she was eligible for care and support from the Council) with Ms Y’s college and her parents. Soon after this, Ms Y’s parents explained there was no longer a need for further involvement from Adult Social Care and this came to an end. However, Ms Y’s parents were in touch again in January 2020 to request a new social worker due to a relationship breakdown with Ms Y meaning she had left the family home and needed accommodation. Ms Y was then placed in supported accommodation and has had ongoing support from Adult Social Care. There have been a number of safeguarding concerns raised but each of these has been dealt with in line with the Council’s usual policies.
The psychiatrist’s report from September 2021 related to Ms Y’s capacity to understand a criminal offence. At that time, the Council felt it was insufficient to conclude Ms Y lacked capacity to make decisions about contact, care and accommodation. However, it acknowledged this did raise questions over the previous Mental Capacity Assessments and said it would relook at these decisions, linking in with the assessment of the Speech and Language Therapist.
The March 2020 Mental Capacity Assessments concluded that, on the balance of probabilities, Ms Y had capacity to make decisions about where she should live and Ms X did not object to this at the time. Since then, the Speech and Language Therapist’s report suggests Ms Y has skills that help mask her difficulties and so these decisions should be revisited.
Ms Y continues to put herself into risky situations, but the Learning Disability Team has not discriminated against her or caused her harm. Social workers had worked on the presumption Ms Y had capacity to make decisions and tried to support her and work with her accordingly. Should Ms Y now lack capacity to make certain decisions, a different legal framework would be applied.
If Ms X remained unhappy with the Council’s response, she could refer to the Ombudsman.
Ms X complained to us later that month.
In February 2022, the Council made an application to the Court of Protection for a personal welfare order relating to Ms Y.
Analysis Safeguarding referrals I do not find fault with how the Council handled the safeguarding concerns it received.
I say this because the Council acted in line with its policy and procedure when it received safeguarding concerns. As Ms Y had been deemed to have capacity to take part in matters around safeguarding the Council ensured it had input from her when making decisions.
Ms Y would only have needed to be assessed for capacity if there were concerns about her capacity, otherwise capacity is assumed. At the time of the safeguarding concerns, the Council did not have concerns about Ms Y’s capacity to be involved in the decision making.
Consulting with Ms Y was in line with the Council’s policy of acting in a person-centred way including seeking her views. Ms Y did not need to be present at the safeguarding meetings for her views to be considered. In addition, the Council created an action plan to safeguard Ms Y with steps including liaison with the police, involving Ms Y’s parents, applying to court and considering alternative accommodation. My view is this was in line with Section 42 of the Care Act 2014 because it was action taken with a view to preventing abuse.
Ms X has provided a list of events the Council did not treat as requiring safeguarding enquiries. When a Council receives information from parents and other sources, it assesses whether they meet the threshold for a safeguarding enquiry. The Council must take account of its safeguarding responsibilities but also allow for some risk taking as part of growing up.
Some of the events Ms X has described do not necessarily need to be treated as safeguarding matters, but rather as part of acceptable risk taking from Ms Y where there is no abuse element at play.
I do not find the Council at fault for not treating all the events Ms X has referred to as safeguarding matters.
Complaint response Ms X has said the Council’s complaint response gave no satisfactory explanation, is factually incorrect, brief, inaccurate and incompetent.
The Council’s response gives a thorough, accurate account which addresses the issues in appropriate detail. While Ms X is unhappy with the response to her complaint, I do not find fault with the Council merely because she dislikes or disagrees with it.
Final decision
I do not find fault with how the Council handled safeguarding concerns, or how it answered Ms X's complaint. This is because the Council has followed its policy and procedures for dealing with safeguarding concerns. It also appears to have given a thorough response to Ms X’s complaint.
Parts of the complaint that I did not investigate I have ended my investigation about the Council’s assessments of Ms Y’s mental capacity in March 2020.
The concerns Ms X raised have been brought to the Court of Protection which makes decisions for people who lack capacity to make decisions for themselves. Ms X is a party to the proceedings and the Court of Protection is best placed to address her concerns. If Ms X questions Ms Y’s mental capacity to make certain decisions and/or disagrees with the Council’s assessments of capacity, the Court has the power to make declarations about Ms Y’s capacity. I consider it reasonable for Ms X to raise capacity assessments during the proceedings.
Investigator's decision on behalf of the Ombudsman