The Ombudsman's final decision
Summary: The Council is not at fault in considering safeguarding referrals made by Ms Z and viewing camera footage as part of its enquiries. The Council is not at fault for considering Mrs Y’s care options including residential care. The Council is at fault for not considering Mr X’s complaint about the safeguarding process but this did not cause significant injustice to Mr X.
The complaint
Mr X complains that the Council: Failed to carry out the agreed actions from the planning meeting of April 2021 and failed to obtain a legal opinion on whether the installation of a camera in Mrs Y’s home had breached her human rights as it had undertaken to do at the meeting.
Inappropriately started a safeguarding investigation against Mrs Y’s carers which caused the care provider to give notice and withdraw its care. Mr X considers the Council also breached Mrs Y’s privacy and the law by viewing camera footage of Mrs Y receiving personal care as part of its investigation.
Failed to respect Mrs Y’s wishes and Mr X’s role as her power of attorney by considering if Mrs Y should move into residential care.
Failed to take action against Ms Z for removing Mrs Y from her home in May and October 2021.
Failed to investigate Mr X’s complaint about these matters.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) 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) 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)
How I considered this complaint
I have: considered the complaint and the information provided by Mr X; made enquiries of the Council and considered the information provided; invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.
What I found
Law and guidance A council must make whatever enquiries it thinks necessary if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. 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) The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. What happens as a result of the enquiry should reflect the adult’s wishes wherever possible, as stated by them or their representative. If they lack capacity it should be in their best interests if they are not able to make the decision and be proportionate to the level of concern (paragraphs 14.78 and 14.79 of the care and support statutory guidance) Mental Capacity Act The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
Council complaint procedure Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009) What happened The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
Mrs Y lived at home and received a care package from a care provider commissioned by her son, Mr X. Mr X held a lasting power of attorney for health and welfare for Mrs Y. Mrs Y’s daughter, Ms Z had installed cameras in the property.
In April 2021, Mrs Y’s care provider made a number of safeguarding referrals about Ms Z being verbally abusive to carers via the camera which upset Mrs Y. The care provider also raised concerns about comments made by Mrs Y about being poisoned and fears about moving to residential care.
Ms Z made a number of safeguarding referrals about the care provided to Mrs Y by the care provider. She also sent videos of the carers attending to Mrs X to evidence her concerns. The Council’s records note it subsequently informed Ms Z that her concerns did not meet the criteria for an enquiry under section 42 of the Care Act. It invited her to submit more video evidence if she considered it would change the Council’s decision.
The Council’s records show it decided to hold a safeguarding planning meeting to consider whether the threshold for a safeguarding enquiry under section 42 of the Care Act was met. This was for the concerns about Mrs Y telling the care provider about being poisoned and having to move to residential care. The record of the meeting shows the Council decided to notify Mr X of the allegations in his capacity as Mrs Y’s appointee and to make further enquiries of the care provider.
The Council wrote to Mr X and set out the safeguarding referrals it had received to establish his views on addressing the concerns. Mr X responded and said he did not want safeguarding involvement due to concerns with the Council’s conduct over previous years. However, he consented to the Council to addressing the issues with the care provider. Mr X also agreed to attend a safeguarding planning meeting in late April 2021.
The minutes of the planning meeting show it considered the safeguarding concerns about the risks of Ms Z’s actions including the impact on the care package. The meeting made a number of recommendations including for the section 42 enquiry to continue, for a district nurse to visit Mrs Y to establish her wishes and feelings and for the Council to write to Ms Z if it establishes the camera is breaching Mrs Y’s human rights.
The Council sought legal advice about the installation of the camera.. It noted the camera should be disconnected until it was established whether Mrs Y consented to the installation.
Ms Z sent further safeguarding referrals about the care provider and included video footage from the camera. The Council subsequently sought advice as to whether viewing the videos would breach the provisions of General Data Protection Regulations (GDPR). It was advised that the viewing of the videos would not breach GDPR.
In May 2021 Mrs Y was admitted to hospital. Ms Z made further referrals as she considered the care provider could not provide safe care to Mrs Y and she could not live alone.
The Council’s records show it considered it was appropriate to visit Mrs Y in hospital to establish her wishes and feelings. The Council noted Mr X did not want the Council to visit Mrs Y. But it considered it was appropriate to do so as it did not have a current mental capacity assessment and in view of the dispute between Mr X and Ms Z about her care. An officer visited Mrs Y when she was medically fit for discharge. She concluded Mrs Y did not have mental capacity to make decisions about her discharge at that time. As Mr X had LPA for Mrs Y’s health and welfare he could make decisions about her care.
The hospital discharged Mrs Y to her home. The care provider made a further safeguarding referral as it found a large blister on Mrs Y's back. Mrs Y was subsequently readmitted to hospital.
The care provider served notice of its intention to end Mrs Y’s care package. Mr X has said this was due to the number of safeguarding referrals made by Ms Z and the Council’s decision to investigate them. A letter from the care provider to the Council said the decision was made due to a combination of situations and issues and experiences. This included Ms Z’s conduct and safeguarding referrals and communication with the Council.
In late May 2021, the Council held a further safeguarding planning meeting to facilitate Mrs Y’s discharge from hospital. The minutes of the meeting record concerns professionals and Ms Z’s concerns about Mrs Y returning home with a care package and Mr X’s view that Mrs Y did not wish to move into residential care. The meeting suggested Mrs Y’s care needs should be assessed to determine if care at home would be a safe option or if she required residential care. The minutes note the court of protection could be approached if Mrs Y was assessed as requiring residential care and Mr X resisted this.
At this time the Council also asked Mr X to remove the camera in his capacity as Mrs Y’s appointee. Mr X has said he undertook to remove the cameras at an earlier meeting with the Council.
Ms Z continued to make safeguarding referrals regarding Mrs Y care.
The Council has said it later established Mrs Y had placed an instruction on her LPA instructing that her appointee could not move her to residential care unless a general practitioner declared it to be necessary. Mr X has said the Council was aware of this provision in 2019. Mrs Y did not move into residential care. She passed away in November 2021.
Complaint Mr X made a complaint to the Council about it viewing the camera footage provided by Ms Z when deciding if it should proceed to a section 42 enquiry. Mr X considered the Council breached the provisions of GDPR and the human rights act. The Council did not uphold the complaint. Mr X made a complaint to the Ombudsman but included matters about safeguarding which had not been put to the Council. We advised Mr X to make the complaint about the safeguarding matters to the Council in order to give it the opportunity to consider the matters and respond to him. Mr X made the complaint to the Council and I understand the Council declined to respond to the complaint.
We investigated a previous complaint from Mr X about the Council’s failure to arrange an independent investigation into other complaints he has made. We found the Council to be at fault for failing to carry out the independent investigation and said it may be appropriate for the Council to combine all Mr X’s unresolved complaints as part of one independent investigation. We said that was a decision for the Council and independent investigator to make.
The Council did not include Mr X’s complaint about the safeguarding process since April 2021 within the independent investigation. In response to my enquiries the Council has said it did not include the complaint in the independent investigation as he agreed the complaints with the independent investigator and the investigation took a significant amount of time due to Mr X’s conduct.
Analysis Recommendations following safeguarding planning meeting of April 2021 Mr X’s concern was that the Council had not complied with the recommendation to obtain a legal opinion on the installation of the camera at Mrs Y’s property by Ms Z. The Council has provided a copy of the legal advice obtained which includes advice on whether or not Mrs Y’s human rights were being breached by Ms Z. There is evidence to show the Council followed the advice. The care provider agreed to turn off the cameras while providing personal care to Mrs Y. The Council then requested Mr X remove the cameras in his capacity as Mrs Y’s appointee. So, I am satisfied the Council followed the recommendations of the planning meeting and took appropriate action to deal with the camera installed by Ms Z.
The Council’s records show the district nurse did not visit Mrs Y in order to establish her wishes and feelings. I do not know if the lack of visit was caused by fault by the Council. But it is not proportionate to investigate the matter further. Any injustice caused by fault by the Council would be to Mrs Y and this now cannot be remedied as she has passed away.
Safeguarding investigations Mr X considers the Council was wrong to commence safeguarding enquiries in response to the numerous referrals made by Ms Z against the care provider from April 2021 to May 2021. He considers section 42 of the Care Act does not provide the Council with additional legal powers of investigation and the Council consideration of the referrals amounted to interfering with Mrs Y’s private life. Mrs Y had put in place legal protections, including appointing Mr X as her lasting power of attorney to prevent harassment by Ms Z in making safeguarding referrals and interference by the Council. Mr X considers the Council ignored these safeguards by considering Ms Z’s referrals.
Section 42 of the Care Act provides local authorities must make enquiries if it believes an adult is at risk of abuse or neglect. The aim of adult safeguarding is to prevent harm and stop abuse or neglect where possible. Ms Z referrals raised concerns that Mrs Y could be at risk so the Council had a duty to make enquiries to establish if those concerns reached the threshold for a section 42 enquiry. Section 42 also provides the Council can make what enquiries it considers to be necessary, so it was not at fault in carrying out lateral checks. The lasting power of attorney and Ms Z’s relationship with Mrs Y could not prevent the Council from carrying out its safeguarding duties.
Mr X has also said the referrals were care issues rather than safeguarding issues. The care and support statutory guidance provides council should not limit their view on what amounts to abuse and neglect. Poor care could amount to abuse or neglect so the Council is not at fault for considering the referrals.
Furthermore, there is no evidence to show the Council’s enquiries caused the care provider to give notice. The care provider told the Council this was for a number of reasons. I note one of these reasons was poor communication by the Council but I cannot conclude, on balance, this alone caused the care provider to give notice.
Mr X has complained that the Council did not take action against Ms Z when she removed Mrs Y in May and October 2021 and she was admitted to hospital. It is not proportionate to investigate the matter further as any injustice would be to Mrs Y and that cannot be remedied.
Mr X has also raised the Council should not have carried out a mental capacity assessment when it visited Mrs Y in hospital to establish her wishes. The Council can carry out a capacity assessment if there are concerns about a person’s capacity to make decisions such as about their care. Even if there was fault, there is no injustice to Mr X or Mrs Y as the Council decided Mrs Y did not have capacity at that time so Mr X could make decisions as her attorney.
Viewing of camera footage.
A key concern for Mr X is the Council’s viewing of the camera footage of Mrs Y receiving care as part of its safeguarding enquiries. He considers this was an invasion of her privacy and a breach of her human rights. I do not consider the Council to be at fault. Ms Z put forward the footage to evidence her concerns about Mrs Y’s welfare. So, the Council had to view the camera footage in order to determine if there was reason to believe Mrs Y was at risk of abuse or neglect and in order to undertake its statutory duties.
Mr X considers the viewing of the footage was in conflict with the Council’s legal advice on the installation of the camera by Ms Z. I note the Council’s legal advice giving an opinion on Ms Z’s installation of the camera said the recordings should not be widely shared. But it also says the recordings should be shared with adult social care and safeguarding if the recordings highlighted abuse or neglect.
Mr X considers the viewing of the camera footage to have breached the provisions of the GDPR. The Council appropriately sought advice as to whether the viewing of the footage to determine if Mrs Y was at risk amounted to a breach of the GDPR. It is not the role of the Ombudsman to determine if the Council’s advice was wrong and whether it has breached the GDPR as that is a matter for the Information Commissioner. I acknowledge Mr X may not have recourse to the Information Commissioner as Mrs Y has passed away. But the Ombudsman cannot be a substitute for the role of the Information Commissioner. It is therefore not for me to determine whether the Council has breached the provisions of the GDPR.
Mr X considers the Council’s viewing of the camera footage breached Mrs Y’s human rights. The Council is not at fault for viewing the camera footage. It is not for the Ombudsman to decide if the provisions of the Human Rights Act, or other legislation, takes precedence over the Council’s duties under the Care Act. That is a matter for the courts.
Mr X also considers the Council is in breach of the Regulatory of Investigatory Powers Act 2000, the Voyeurism Act and other legislation when viewing the camera footage and may have committed a criminal act in doing so. As explained above, I do not consider the Council to be at fault in viewing the camera footage as that was in accordance with its safeguarding duties. Ultimately, whether the Council has committed a criminal act is a matter for the police and courts. It is also not proportionate for me to pursue the issues of GDPR and whether the Council has breached any other legislation as any injustice would be to Mrs Y which cannot be remedied.
Considering if Mrs Y should move into residential care The minutes of the planning meeting in May 2021 shows the Council considered the options for Mrs Y’s care following her two admissions to hospital. The Council had not established Mrs Y’s wishes and feelings at this time although it was aware of Mr X’s views. But I do not consider the Council to be at fault as it was simply considering the options for Mrs Y’s care and there is no evidence it pursued the option of residential care for Mrs Y any further.
Complaint The Council responded to Mr X’s complaints about it breaching the GDPR. But it did not respond to Mr X’s other complaints about the safeguarding process from April 2021. The Council has not provided an adequate explanation for not doing so the Council’s failure to respond to the complaint is fault. But I do not consider the fault caused significant injustice to Mr X to warrant a remedy as he has been able to raise his complaints with the Ombudsman.
On balance, I do not consider there is fault in the Council’s decision not to include Mr X’s complaints about the safeguarding process from April 2021 in the independent investigation. I note Mr X disputes the Council’s reasons for not including the complaint. But the Council has explained why it did not include the complaint. Furthermore, our previous investigation left this decision to the Council and independent investigator to make.
Final decision
The Council is not at fault in considering safeguarding referrals made by Ms Z and viewing camera footage as part of its enquiries. The Council is not at fault for considering Mrs Y’s care options including residential care. The Council is at fault for not considering Mr X’s complaint about the safeguarding process but this did not cause significant injustice to Mr X. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman