Date of decision: 11 May 2026
Summary
An individual acting as her late mother’s attorney complained that the Council ran a safeguarding enquiry about her conduct without telling her, kept poor records, failed to liaise properly with the Office of the Public Guardian and then ignored her complaint.
What happened
The report concerned an elderly woman, Ms Y, who had care and support needs, who lived in a council‑funded care home and died at the end of November 2024; her daughters, Ms X and Ms M, held Lasting Powers of Attorney for both health and welfare and finances.
In April and May 2024, the Council’s funding panel met to consider funding for Ms Y’s care and support and recommended raising a safeguarding concern about possible neglect or acts of omission by Ms X, alleging she refused permission to the care home to provide pain and behaviour‑controlling medication and covert administration. The Panel members also recommended a referral to the Office of the Public Guardian (OPG) over doubts about Ms X acting in Ms Y’s best interests. However, the Council did not make an OPG referral at that stage and later told the Ombudsman this was because circumstances had changed and Ms X appeared to be appropriately exploring alternative accommodation in Ms Y’s best interests.
However, she was then hospitalised and concerns were reconsidered.
In July 2024, managers met to discuss the situation, noted that no OPG referral had been sent and agreed actions including making the referral, progressing to a section 42 Care Act enquiry for potential abuse of power and neglect, and convening an urgent safeguarding strategy meeting with relevant professionals. The Council then sent a written concern to the OPG in July 2024 stating that the two attorneys disagreed over important aspects of Ms Y’s care, medication and accommodation and might not be acting in her best interests.
A safeguarding strategy meeting took place in mid‑July; minutes recorded that both attorneys now agreed Ms Y’s needs would be best met in a particular placement (placement A), that the hospital discharge team had said it would apply to the Court of Protection if the attorneys could not agree, and that Ms M had emailed the Council to say she now agreed with Ms X, with next steps being to await the OPG’s response and to progress the safeguarding enquiry by updating the enquiry officer.
Despite this, there was never a safeguarding case conference; case notes suggested the enquiry stalled because the Council was “awaiting information from the OPG” and incorrectly recorded that both attorneys had been made aware of the safeguarding concerns. Email exchanges showed the OPG sent a questionnaire form on 5 August 2024, the Council returned it by secure email on 20 August and sent a further email on 30 August to confirm receipt, but there was no evidence of any further liaison between the Council and the OPG between September and December 2024. Ms X later told the Ombudsman she only discovered the safeguarding enquiry late in 2024, when a social worker mentioned it in a meeting, by which time Ms Y had died at the end of November 2024.
In January 2025, the Council closed the safeguarding enquiry on the basis that Ms Y had died; because it ended before conclusion, no outcome was recorded, and the Council acknowledged Ms X should have been told the enquiry had ended. Around this time the OPG wrote to Ms X explaining it had no authority to continue its investigation after Ms Y’s death, adding that had it concluded, it would have taken no action because there was no evidence up to Ms Y’s death to substantiate the concerns. Ms X complained to the Council in January 2025 about the safeguarding process, the OPG referral and the lack of communication. The Council did not respond to Ms X’s complaint although she and the Ombudsman chased it several times. The Council eventually responded in August 2025, after the Ombudsman had accepted her complaint for investigation.
When the Council finally replied in August 2025, it apologised for confusion caused by not responding earlier, explained it had referred to the OPG in July 2024 because the ongoing dispute between Ms X and Ms M was affecting decisions on Ms Y’s care, accommodation and medication, and stated both attorneys had been named in the referral so the OPG could investigate. The OPG was the body best placed to investigate such concerns. The Council said it had made no findings about Ms X’s conduct, that the safeguarding enquiry had closed with no action against either attorney, and justified not telling her about the OPG referral at the time on grounds of confidentiality and restrictions linked to the safeguarding enquiry, although it accepted communication could have been better and it was sorry for this. She should have been informed once matters were closed. The Council said where there are reasonable concerns about whether attorneys are acting in a person’s best interests, it was correct to refer to the OPG.
Ms X argued to the Ombudsman that section 42 of the Care Act requires “reasonable cause to suspect” and said the Council had no evidence or credible information, that starting the enquiry via a finance panel was improper, and that she disputed all allegations.
What was found
The Ombudsman accepted that the Council was entitled to manage the concerns within the adult safeguarding framework and did not require fully evidenced facts at the point of raising concerns, as testing of allegations takes place at a later stage during the enquiry. Factual findings are them made at a case conference, so there was no fault in deciding to open a section 42 enquiry. However, the Council was at fault for failing to notify Ms X of the safeguarding concerns, denying her the opportunity to provide comments and evidence, not telling her when it ended the enquiry, and inaccurately recording that she had been informed, contrary to Care and Support Statutory Guidance paragraph 14.131 and its own procedures requiring alleged perpetrators to normally be told of allegations and outcomes.
The Ombudsman also found fault in the Council’s record‑keeping because it did not record its reasons for not making an OPG referral or for not reporting safeguarding concerns internally in mid‑2024, The Council’s failure to seek updates with the OPG about progress of the OPG investigation post August 2024 was fault. The Council explained it paused the safeguarding enquiry because of the OPG’s involvement. This was a matter for the Council and the Ombudsman had no grounds to criticise it. However, the Council should have sought updates from the OPG so the Section 42 enquiry could either progress to a case conference or be discontinued. There was drift and inaction on the safeguarding enquiry from the end of August to December 2024. This was fault. In relation to the OPG referral itself, there was no fault: referring concerns about whether attorneys were acting in Ms Y’s best interests was consistent with statutory guidance and the Council responded to OPG information requests within about two weeks, so there was no delay.
The Council’s handling of Ms X’s complaint was faulty because it significantly delayed responding, contrary to the Local Authority Social Services and NHS Complaints (England) Regulations 2009 expectations for timely investigation and response. The Ombudsman concluded these faults caused Ms X avoidable distress, time and trouble and deprived her of the chance to respond to allegations about her conduct, though there was no ongoing safeguarding risk because Ms Y had died and no factual findings had been made. As a remedy, the Council agreed to pay Ms X £250 as a symbolic payment and to issue a written reminder to safeguarding officers that they must, wherever practicable and safe, inform people alleged to have caused harm so they can respond to allegations, and to provide the Ombudsman with evidence of compliance; no apology was recommended because Ms X had said she did not want one, and the Ombudsman declined to require removal of records or completion of the investigation as this would be unnecessary and disproportionate.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s decision highlights that it is lawful to open a safeguarding enquiry under section 42 of the Care Act on the basis of “reasonable cause to suspect” possible abuse or neglect, provided that the testing of allegations and factual findings happens later in a properly‑run enquiry process and conference. The case shows that councils must keep clear contemporaneous records of why they do or do not pursue safeguarding actions and referrals to bodies such as the Office of the Public Guardian, and that poor recording can itself amount to maladministration even when the underlying safeguarding threshold has been met. The decision underlines the importance of timely, honest communication with people who are the subject of safeguarding enquiries, including attorneys and relatives, unless there is a clear lawful justification for delay, and of responding promptly and substantively to complaints about safeguarding and liaison with other public authorities.
Although the report does not spell out Ms X’s reasons for refusing medication, she may have felt that her mother’s needs were not being met at her placement. Although the report does not give much detail on this, if in fact both LPAs disagreed with Ms Y’s placement, we think the Council should have dealt with this situation by either agreeing to the placement which the attorneys wanted, or refused it following a re assessment of Ms Y’s needs, giving lawful and rational reasons. A refusal might have led to a dispute to be determined by the Court of Protection and/or through public law remedies. The safeguarding process and referral to the OPG could have proceeded in parallel but not as an alternative to the proper resolution of any best interest or public law dispute.
The Ombudsman accepts the Council’s decision to treat Ms X’s stance on medication and placement as potential neglect or abuse of power without testing whether her position could equally be seen as a principled disagreement about the lawfulness or suitability of the care plan. Community care case law stresses that relatives’ refusal to agree to a particular package, or their insistence on a different configuration of services, can amount to a legitimate challenge to the adequacy or legality of the offer rather than obstruction.
Public law requires councils to recognise that strong advocacy for a person’s rights, including contesting medication regimes or placements, may be part of promoting wellbeing under the Care Act rather than evidence of abuse, and the Ombudsman’s report does not explicitly test whether Ms X’s conduct fell into that category before endorsing the Council’s framing of the issue.
The report could have considered the treatment of attorneys and other authorised decision‑makers in the safeguarding and care‑planning process with explicit incorporation of the rules of natural justice applying to safeguarding decisions, as with any decision of a public body’s. The decision notes that the council failed to inform Ms X about the safeguarding concerns and that this was procedurally unfair, but it stops short of analysing the specific statutory position that people holding health and welfare or property and affairs powers of attorney are more than mere consultees; they are people who are authorised to refuse consent to medication. Where the question is one of medication, a welfare power holder IS the decision maker, and not merely a consultee. The only proper way to stop a welfare power holder from lawfully refusing medication is to apply to the Court of Protection, promptly not the OPG!
Community care law makes clear that when a person lacks capacity, an attorney is the agent standing in the grantor’s boots for many decisions, and that excluding such an attorney from key safeguarding and care‑planning discussions undermines the validity of subsequent decisions and exposes the Council to challenge.
Taken together, these omissions mean that the Ombudsman’s report does not fully reflect the way community care law links safeguarding, assessment, eligibility, care planning and the involvement of authorised relatives into a single, legally coherent process.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Oldham Metropolitan Borough Council (25 001 396) 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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