Date of decision:
04 March 2025
Summary
Mr X complained about Kent County Council’s safeguarding investigation into his mother’s situation when she was admitted to hospital and the delays in providing him with an advocate, causing him significant distress and uncertainty. The Ombudsman found no fault on the part of the Council. We are not sure that this is a defensible position although the confusion in the report makes it impossible to do anything other than hazard some comments.
What happened
In Spring 2022, Mr X’s mother was admitted to hospital, prompting Council safeguarding involvement due to concerns over Mr X’s own actions, including financial matters. Mrs X was later placed into a care home for respite. Mr X had mental health and care and support needs of his own. His mother had given him Powers of Attorney (“LPA”) for her finances and health and welfare. [The report does not clarify whether he had a care package of his own.]
He had no contact with Mrs Y for over four months when she went to a respite home and the Council did not make him aware of the investigation at the time.
Mr X was prevented from contacting his mother for several months as the Council cited her apparent wishes and lack of consent to share her location despite Mr X arguing that there had been no issues between him and his mother. He also argued that the Council could not have considered his mother’s dementia when making the decision to treat what it said she had said as a capacitated decision not to disclose her location.
In summer 2022, Council officers met with Mr X to explain the concerns and Mrs Y’s wishes; Mr X acknowledged these and apologised [but the report does not say for what]. He made the Council aware of his own vulnerabilities at this time.
By late autumn 2022, Mrs Y returned home and the safeguarding enquiry was closed.
Mr X formally complained to the Council in December 2022, alleging failure to provide an advocate and improper investigation. The Council met with Mr X and an advocate multiple times from early 2023 to early 2024.
In February 2024, the Council issued a final response, upholding the complaint in relation to delay in signposting him to a charitable organisation for his own support but otherwise defending its actions. The Council was satisfied it had acted on Mrs Y’s wishes at the time and she made these decisions without duress and with capacity.
In July 2024, the complaint was brought to the Ombudsman by Mr X’s advocate from an independent advocacy agency.
What was found
The Ombudsman, having had sight of the detail of what was on the Council’s own files albeit not able to share that information with the complainant, found no fault in the Council’s safeguarding investigation or its handling of the enquiry. Kent County Council had followed correct procedures, considered capacity and consent, and restricted information sharing appropriately which is what is expected of a council.
Despite claims by Mr X that Kent County Council’s safeguarding officers bullied him, the investigator found no fault on the part of the officers in this situation.
The Council made an advocacy referral but about something else, something to do with Mr X himself, and there was delay in that regard, for which it apologised. Although Mr X complained that Kent County Council failed to provide an advocate for his mental health support, the Ombudsman found that the Council was not under a duty to do so and was therefore not at fault here.
Mr X’s frustration was acknowledged, but the Ombudsman found no significant injustice caused by the Council’s actions.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
For safeguarding purposes, under the duty in Section 42 of the Care Act 2014, the Council must make enquiries if it has reason to believe an adult with care and support needs is at risk of abuse or neglect.
The enquiry can range from a conversation to a formal multi-agency process, and the Council must decide if action is needed to protect the individual. The Council must act on the person’s wishes where possible, especially regarding capacity and consent.
A need for Care Act Independent Advocacy under s68 for the person to whom the enquiry relates, must be considered and provided where needed, but the Council is not obliged to offer advocacy from a specific provider, as Mr X had hoped for. The duty to provide advocacy under the Care Act arises where a person would otherwise have substantial difficulty being involved in the process and there is no appropriate individual to support them. Whether a person who is regarded as a perpetrator should be provided with advocacy, is not clear, and our instinct is no, there is no such duty. However, if they are a client in their own right, or a carer, with a carer’s assessment and support plan, then the safeguarding might involve a revision of one or other of the persons’ plans, and then advocacy under section 67 could be triggered.
The Ombudsman’s conclusion that the Council was not under a duty to provide advocacy from a specific organisation is correct, but a more rigorous analysis could have clarified whether and when any statutory duty to provide independent advocacy applied at all in this case, and whether any delay in referral after giving Mr X an impression that he would be given access at least to generic advocacy constituted fault.
The broader implication is that councils should ensure timely and clear communication about advocacy discretion or entitlements, and professionals should be alert to the need for robust advocacy assessments in safeguarding cases involving vulnerable adults. We think that Mr X had been seeking counselling rather than advocacy, as such, and would point out that this could have been provided under Section 8.
We think that the investigator got the law wrong in terms of the approach to Mr X’s rights, given he had been given a power of attorney for both finance and welfare by his mother. A power of attorney for welfare does not take effect until the person loses capacity in relation to the issue in question and the only sensible way of operating a power of attorney must be to treat the holder as the primary decision maker on the question of that lack of capacity. A power of attorney for financial purposes can be expressed to take effect Regardless of capacity But donors are encouraged to specify conditions for the decision making expected of the holder about incapacity such as consulting a clinician or an independent social worker; once again therefore the intention of Parliament seems to be to treat the donor’s chosen trusted supporter as entitled to make a decision about capacity.
A welfare attorney can, in principle, exercise the donor’s data‑protection right of access where the donor lacks capacity and the attorney is acting within the scope of the LPA, so a blanket refusal by a council simply because “X told us not to tell you where they are” is highly contestable.
So, we think that if a local authority knows the whereabouts of a donor of an LPA for welfare, and refuses to tell the attorney where that person is, on the basis of its belief that the individual has asked it not to share that information with the donee, and the donee explains that the welfare power of attorney that he holds would give him the right to make a subject access request regarding that information as long as he has a reasonable belief that the donor no longer has capacity, the council is actually in the wrong and just using its institutional dominium as opposed to a lawful authority.
On that footing, a welfare attorney with a reasonable basis for believing the donor now lacks capacity in relation to contact/location decisions is a proper proxy for the donor’s own Article 15 UK GDPR access right, unless the LPA itself or a sector‑specific statute narrows the attorney’s remit.
A controller can only refuse or limit a SAR by relying on specific UK GDPR/Data Protection Act exemptions (eg “manifestly unfounded or excessive” requests, or where disclosure would reveal third‑party data that cannot be fairly separated or anonymised), but must explain and justify this, not simply assert a preference or an institutional policy. A person under the shadow of a safeguarding concern cannot protect themselves or use the legal framework for their protection unless they know that they are the subject of a safeguarding concern. The Court of Protection is there through which public bodies can take proceedings if faced with an attorney regarded as not capable of acting, or not choosing to act, in the donor’s best interests.
Ordinary information‑sharing/safeguarding guidance stresses that information may be withheld or carefully managed where disclosure would cause a serious risk of harm, but again this must rest on a defensible safeguarding rationale, not on deference to an untested expressed wish that may itself have been formed without capacity.
If the council’s only ground is: “The individual told us not to tell you where they are”, without addressing (a) whether the person had capacity to make that decision, (b) whether there is a genuine safeguarding risk in disclosure, and (c) the attorney’s documentary authority, then the refusal is unlikely to be a proper application of UK GDPR/DPA exemptions.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kent County Council (24 004 906) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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