What happened
Mrs G lived overseas. Her first language was not English. In 2019 she came to live with Mr & Mrs Y, her daughter and son-in-law. Whilst with them she received periods of respite. Mr X, Mrs G’s son, had lasting power of attorney (LPA) for Mrs G’s financial affairs. The Council arranged an interpreter to support their communication with Mrs G.
In March 2020 the Council received a safeguarding referral from another of Mrs G’s children about Mr X’s management of her financial affairs. The Council spoke to Mr X, while Mrs G told them she had no concerns. The Council took no further action. In June 2020, a further safeguarding referral was made concerning a document Mr X had asked Mrs G to sign, without knowing its purpose. Mrs G confirmed this was true. Mr X clarified what the documents were.
Around this time Mr X the LPA and Mrs Y her daughter were engaged with the Council about their mutual disagreement with Mrs G’s wish to return to her overseas home. A subsequent capacity assessment, supported by an advocate and interpreter, established that Mrs G had capacity to make this decision for herself. At the end of June, Mr X agreed to pay for three weeks of respite for Mrs G whilst the Council made arrangements for her to return home.
In July, Mr X provided the Council with a copy of the item he had previously asked Mrs G to sign. Mr X remained opposed to Mrs G moving overseas and did not agree to a financial assessment. A subsequent meeting supported by an advocate and interpreter established that Mrs G still wished to go home, was happy to remain in respite until then and that Mr X would pay for it with her money.
A further meeting between the Council and Mrs G’s children ended as a result of disagreements between the siblings and thereafter a meeting with Mrs G triggered a safeguarding enquiry. The Council then notified Mrs Y and Mr X of the existence, but (intentionally) not the substance of this enquiry, advised Mrs G could not be removed from respite whilst the enquiry was ongoing and said that it would fund any extension of the respite that was required.
On 11th and 14th August the Council spoke to Mr X and Mr & Mrs Y respectively. Thereafter, all three questioned what the Council had done to support Mrs G’s return home and the efficacy of the interpreter. Additionally, they raised a safeguarding concern about the sibling who had made the referral.
On 25 August Mrs Y notified the Council that Mrs G wished to move out of respite and that she would be taking her back to her residence. The Council said they could not do so due to the ongoing safeguarding enquiry then requested to conduct a financial assessment in connection with funding the respite.
Mrs G told an interpreter she wished to stay with Mrs Y for a couple of weeks before travelling home [internationally]. The Council then notified Mr X and Mrs Y that they needed to support Mrs G’s return home as failing to do so would be a deprivation of her liberty and that the nature of the safeguarding concerns would be divulged in due course. On 31 August Mrs G returned to Mrs Y’s care.
Subsequently Mr X and Mr & Mr Y complained to the Council on a number of counts including being given incorrect information around Mrs G leaving respite; the poor communication about the safeguarding investigation; failure to seek their input into the enquiry or to respond to their own safeguarding concerns about their sibling.
The Council accepted it had not provided details about the safeguarding allegations and that communication to ascertain the family’s views had been limited. Further, regarding its assertion that Mrs Y could not take Mrs G home the Council said it should have explained it would first seek Mrs G’s views on this.
Dissatisfied with this response, the family added that had they not sought legal advice Mrs G could still have been in the care home, against her wishes, and paying £900 per week. In May 2021 the Council responded that whilst it had stated the safeguarding concern as the rationale for Mrs Y not to take Mrs G home, it had not been restricting her movements due to the safeguarding concerns, but because it had been progressing support arrangements agreed with Mrs G, whose changing wishes to then return to Mrs Y’s home had subsequently been enabled. Furthermore, that it had not actually started safeguarding enquiries as the issue had not met the threshold for a s42 investigation, and that this was not the correct vehicle to settle family disputes.
The family then complained to the LGSCO who noted there was no fault in the handling of any safeguarding matters, up to and including the point when on 25th August Mrs Y stated Mrs G wanted to return to Mrs Y’s home. However, in July, the Council told the family that Mrs G could not leave respite due to the safeguarding concerns and did not allow them to take her out of respite without prior agreement. This assertion was repeated in August, yet no evidence indicated the Council had involved Mrs G in these decisions. This was fault.
Subsequent to this, the Council had advised the family that Mrs G remained in respite whilst it supported her return home, and not as a result of any safeguarding concerns. However, this was not clarified to the family after they complained. This was also fault although, as Mrs G was happy to remain in respite throughout, she was not caused any injustice.
Furthermore, the LGSCO identified that the Council had not notified Mr X of the closure of the safeguarding enquiry, which although not obligatory, would have been good practice. Additionally, whilst the Council did not consider the family’s own safeguarding concerns reached the enquiry threshold, it did not notify them of this decision until May 2021 which was fault. However, this did not cause significant injustice as the family could have raised a second concern.
The LGSCO recommended the Council apologise to Mr X and Mrs Y for the avoidable distress of wrongly informing that Mrs G could not leave respite, and ensured its staff clearly record the reasons for any restrictions imposed through a safeguarding management plan and that such restrictions be discussed and agreed with the person at risk and their views recorded.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Care Act Statutory Guidance on safeguarding is based on the principles of Making Safeguarding Personal, human rights and public law principles including fairness.
These recognise that being safe is not the only thing that is important to someone and that the wellbeing of the individual must be considered in a personalised – and lawful – way.
The action of the Council in this instance was contrary to several of the principles set out in the guidance:
- Empowerment – Mrs G and her family were not involved and decisions were made about them rather than with them.
- Proportionality – the response was disproportionate and intruded on Mrs G’s ability to get on with her life.
- Accountability – the Council was not transparent about its decision making and failed to communicate.
The fundamental issue that led to the complaint and LGSCO involvement was the Council’s lack of transparency. The fault related to not involving Mrs G in decisions that were about her. A secondary issue was the lack of communication to the family about the outcome of the safeguarding enquiry.
To our mind, the fact that Mrs G was – in the opinion of the LGSCO – ‘happy’ with the situation, is not the point. Legally, the Council must follow the principles and duties of the Care Act 2014 and that includes involvement and a personalised approach to safeguarding, turning on capacity, and participation and due process rights. What of advocacy, here, amidst warring siblings, we would ask?
An apology was a light consequence, it seems to us.
As a bare minimum, Councils should take to heart the requirement from the LGSCO to agree a safeguarding plan with the person concerned and write this down. Without this, any action taken to safeguard would likely be unlawful for want of reasons, and due process. Safeguarding plans have no special status or immunity from public law challenge.
The full Local Government Ombudsman report on the actions of Thurrock Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/20-011-851