Luton Borough Council at fault for failing to make safeguarding enquiries under section 42 of the Care Act 2014

Decision date: 06/11/19

What happened

Mr X is on the autistic spectrum and cares for his mother, Miss Y, who lives with him, and suffers from painful physical disabilities which also affect her mobility.

In June 2018, Mr X sought a carer’s assessment for himself and asked the Council to do a needs assessment for his mother.

A Social Care Assessor visited the home in August to undertake these assessments. She found the need for some minor adaptations to meet Miss Y’s needs. The SCA recorded that there was no need for a Mental Capacity Assessment (MCA) and referred Mr X for a one-off carer’s “grant” of £200.

Mr X contacted the SCA in September to say that the adaptations were underway and would take three weeks, and invited her to visit the property upon completion.

In November 2018, a charity contacted the Council with a safeguarding concern regarding Miss Y. The concern was that Mr X was not properly dealing with the finances and was not paying a maintenance bill for the premises, which meant that there was no heating.

The Council decided under the ‘pre-reporting stage’ of its local Multi Agency Safeguarding Adults Practice Guidance (MASAPG) that it would:

  • Assess Miss Y’s needs
  • Assess Miss Y’s capacity to manage her own finances
  • Consider ‘safe custody’ if she did lack capacity
  • Discuss concerns with Miss Y

Social workers called the house in late November trying to reach Miss Y but only spoke to Mr X.

His diagnoses of autism, dyspraxia and profound hearing loss were noted. Despite communication difficulties, he conveyed that relatives had provided oil heaters and arranged for a contractor to fix the central heating; that he did not have power of attorney for his mother and that she was refusing a capacity assessment and refusing to see a social worker. He also said that he did not like strangers because of his autism and that he did not want a social worker to visit.

One of the social workers then contacted the District Nursing service (who did not know of Miss Y) and attempted to contact Miss Y’s GP to no avail. She (the social worker) then decided to do a welfare check.

After several failed attempts to contact Mr X or Miss Y again, the social worker visited the house – knocked, and then looked through the window. Mr X shouted at her and pointed his finger through the window. She was unable to enter and speak with Miss Y.

Mr X called the Council and complained that he and Miss Y were upset as they had expressed their wish not to be visited. He said that the social worker had walked around the building seemingly taking pictures of the house and key safe. The social worker denied this.

An Advanced Practitioner advised the social workers that Miss Y needed an MCA assessment and that they should get in touch with the police for a welfare visit.

The social worker returned the next day with 2 police officers who obtained consensual entry, and confirmed that the conditions inside were ok.

Miss Y came to the door using her wheeled walking aid and herself said as follows:

  • they had oil heaters and had arranged for contractors to do repairs;
  • she could not give contact details for other family members as they lived too far away;
  • she had no concerns about personal care or daily living tasks as Mr X helped with everything;
  • she did not want any help from Social Services;
  • she did not want a mental capacity assessment and displayed “no concerns” while communicating.

The social worker, however, asked Miss Y’s GP Practice to assess her health and mental capacity. The Practice confirmed a GP had visited the home at the social worker’s request and had no concerns.

Mr X complained to the Council about the social worker and said that both he and his mother had been frightened when she had visited their home.

After some delays, the Council replied to Mr X’s complaint contending that the social worker had done anything wrong. It said that as the first Social Care Assessor’s involvement had ended in October, its outcome could not be regarded as determinative in the context of a new safeguarding concern that had been raised. It also apologised and claimed that the lack of recent contact by any professionals with Miss Y was behind their treating the concern as of greater immediacy. It accepted it could have tried to make contact through other external voluntary agencies.

Mr X complained to the Council about what happened. He said:

  1. Social Worker B had been persistent and forceful over the telephone;
  2. Social Worker B had wandered around outside their home peering through the windows, banging on the doors and taking photographs of the property;
  3. he and his mother were frightened and did not know who the person was;
  4. Miss Y had recently been assessed and no concerns had been raised;
  5. the Council needed to listen to the recordings of his telephone calls with Social Worker B and the Manager, as they would support what he had said

What was found

The Safeguarding Adults Board had developed a multi agency guide for all its member organisations no doubt to ‘Make Safeguarding Personal’:

  • “If you are unable to access the person whom you have the concerns about as a practitioner or you have difficulty in accessing them without the third party to whom the concern relates being present, you should consult the local authority appointed worker or if the person does not have an allocated worker, the Luton Safeguarding Adult Team for advice.”
  • “As part of this pre-concern phase; you may need to discuss the matter with other agencies such as the police; The Care Quality Commission; the adult’s GP; and the care commissioner.”
  • If the issue cannot be resolved through these means or the adult remains at risk of abuse or neglect, then the local authority’s enquiry duty under Section 42 of The Care Act continues until it decides what action is necessary to protect the adult and by whom and ensures itself that this action has been taken. A Safeguarding Concern should be made at this point.”

The Ombudsmen did not find the Council at fault for enquiring into the safeguarding concerns raised by the charity. However, these enquiries were not made under section 42 of the Care Act 2014. It took action under the ‘pre-reporting stage’ of the MASAPG, a stage that was not IN the Council’s own Safeguarding Adults Policy. On the other hand, a stage in that specific LUTON policy (formal risk assessment) was not in the MASAPG.

The LGO concluded that the absence of a risk assessment before taking action was ‘fault’ and that formal risk assessment (written up) would have somehow avoided what had happened.

The LGO investigator found that this caused Mr X and his mother a great deal of distress which it could have easily avoided had it followed its own policies.

Mr X had told the social worker that he did not like strangers visiting the house. The Council was at fault for not considering its duties under the Equality Act 2010 which could have involved sending somebody to the house that was already known to them. There were at least two officers who could have done this, without causing a delay – the Social Care Assessor or the Team Manager.

This could have avoided the distress caused by the visit on 29 November, the visit with Police Officers on 30 November and the involvement of Miss Y’s GP.

It was fault by the Council that it did not consider its duties under the Equality Act 2010.

Had the Council checked its own records it would have seen that Mr X had invited the SCA to visit the house to see the adaptations that had been done. The Council may have then been able to put two and two together and realise that the adaptations had been the reason that the pair were struggling to find the money to repair the heating.

There was no reason to question Miss Y’s mental capacity under the Mental Capacity Act 2005. The first Social Care Assessor had not questioned her mental capacity and the safeguarding concerns had not turned on any question of mental capacity. Miss Y’s comments were coherent and confirmed what her son had said the previous day.

But the Council took no account of Miss Y’s views and requested a visit by her GP and a capacity assessment. Miss Y also made it very clear to the social worker that she did not want a capacity assessment.

The Ombudsman found the Council at fault for failing to empower Miss Y as required by the Care and Support Statutory Guidance.

These faults amounted to injustices to Mr X and Miss Y as they were both caused avoidable distress.

Remedies

The Council has agreed that it will

  • Apologise to Mr X and Miss Y for the failure to properly deal with the safeguarding concerns and for the distress this caused.
  • Pay Miss Y £250 and Mr X £350 for the distress it caused them.
  • Review its safeguarding policies
  • Create and issue a guidance note to relevant staff about the requirements of the Mental Capacity Act 2005 and the Equality Act 2010, especially referring to the issues found in this investigation.

Points for the public, service users, families and social work staff and safeguarding leads

Safeguarding is a responsibility; the essence of it is probing to see if all is well. It’s a statutory duty, and this year’s hot topic is coercive control whereby vulnerable adults may be in a situation which puts them at risk. But that doesn’t give a local authority employee a power or a mandate to go round brandishing ‘an MCA’ just because people may be living in circumstances that MAY not seem ideal.

Safeguarding, we are told, is everyone’s duty. So if anyone makes a referral to safeguarding, that is not wrong, or nosey, or causing trouble. A council in receipt of a referral can’t just ignore it; staff need to explain what they’re worried about, to get a clue about what is really going on. And to do that, someone has to go out and engage, to see if the statutory threshold for even instigating any formal enquiry is even arguably met.

That threshold is being a person with care and support needs which make the person unable to protect themselves, and being thought to be someone who may be at risk of abuse or neglect.

Making Safeguarding PERSONAL was an initiative adopted by the sector after 10 years of case law about mental capacity, and councils both overdoing safeguarding and UNDERdoing it as well because nobody in the sector’s leadership would accept that mental capacity evaluation is the golden thread tying safeguarding to statutory functions of assessment and care planning, and the existence of a right or a duty to intervene, versus the need to respect people’s lifestyle choices.

The initiative reminds staff that they need to find out what the person themselves thinks about the situation, first and foremost, because one person’s apparent victim status is another person’s lifestyle choice; a person with capacity may choose wisely or unwisely that the circumstances they find themselves in are better overall than doing without the pros and cons. On the other hand, coercive control from a third party, a person on whom one might be dependent, or where co-dependency exists, I emotional and psychological terms CAN be enough to make a person assert that everything is just fine, and decline help or attention through fear, lack of insight, duress or simple ignorance of the good that attention from a social worker can bring about.

So in this case, there had to BE engagement. Mr X and his mother were legitimately scrutinised.

A person (even a person who has been the subject of a safeguarding referral) can refuse a Care Act assessment, which is itself a very easily triggered DUTY; unless, that is, they are thought to lack capacity or be at risk of abuse or neglect – the duty then subsists.

Likewise with safeguarding: a decision has to be made on the basis of enquiries whether the person is a person with care and support needs; whether they are or may be at risk of abuse or neglect; whether there is any reason to think that their particular needs make them unable to protect themselves.

The policies in this case are a red herring, in our view. All any council needs is to understand the duty to take the facts into account and crunch them rather than dithering or blindly carrying on AFTER enough facts have been obtained.

Before a council can walk away from someone declining assessment for social services, the council officer must evaluate whether there is any reason to think that the person at the heart of the concern is actually cognitively able (everyone is presumed to be capacitated under the MCA, unless they are shaky on any one of the four indicators of incapacity) to refuse – and even if they are, is there a reason to be concerned independently for them (ie are they vulnerable even if capacitated, to any identified harm). It is that simple.

Before embarking on a s42 enquiry in a formal sense, some other informal enquiry obviously has to be made to come to the conclusion one way or the other about the safeguarding trigger criteria: here, there was no reason to suspect Miss Y lacked capacity, and the engagement was bungled through insufficient analysis of the facts known to the council.

A person’s capacity can be assessed without their co-operation or consent; and sometimes HAS to be, because the crosser they are at finding themselves under scrutiny, the less likely they are to be happy about being put through any kind of mental capacity consideration. If a person refuses to engage at all, even after the above framework has been explained to them (which should be enough to at least calm the situation down if properly articulated as the council’s DUTY, for the sake of those who DO lack capacity) then the Court of Protection can be asked to ORDER a person to be assessed, or the Mental Health service can be invited to consider using compulsory powers that do not even TURN on mental capacity in the first place.

If it were enough for a person to say “Thanks but no thanks, just go away”, a delusional person would never get help and a person who was coercively controlling a more vulnerable person would be able to carry on so doing with impunity.

The whole point of the Mental Capacity Act is to give public bodies a way in to doing what is necessary, with a lawful basis, and for that, some leeway is required. It is not a disproportionate invasion of people’s human rights for the State to take this much care for ensuring the security of citizens’ persons, as well as their other freedoms.

We think that the outcome was the right one in this report, but not necessarily for the right reason. Formal risk assessment is something that nobody has time for these days prior to safeguarding, but acumen and judgement are sometimes assisted by writing things down, and certainly writing them down helps create an evidence basis for proper decision making about escalation.

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The full Local Government Ombudsman report on the actions of Luton Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-016-910