Safeguarding, Harm & Deprivation of Liberty

Councils’ safeguarding duties under the Care Act, apply to an adult who: has needs for care and support (whether or not the local authority is meeting any of those needs); is experiencing, or at risk of, abuse or neglect; and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

Safeguarding is a responsibility without it being a duty to ensure that nobody is ever harmed by themselves or others; the essence of it is probing, gently, and in a person centred way, to see if all is well, as if one was doing an assessment of need, and sometimes even though one is not being permitted to intervene. So it is a function that runs parallel to assessment and care planning, and which sometimes have to be discharged separately.

A council in receipt of a referral can’t just ignore it; and neither they come to conclusions without taking the views of the person affected, into account. Councils’ staff need to explain what they’re worried about, and to do that, someone has to go out and engage, to see if the statutory threshold for even initiating any formal enquiry is even arguably met. There is no threshold of significant harm any longer: a s42 investigation can be a few minutes’ conversation or a full-blown and formal investigation. The only 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 – those words themselves, abuse and neglect, being important parameters for consideration. Not all harm signifies ‘neglect’, whereas a pattern of it may well do so; not all upset connotes ‘abuse’.

Few LGO reports provide compensation for mental or physical HARM, focusing on distress and inconvenience; however sometimes where the poor social work or commissioning has led to harm, the LGO considers it necessary to reflect that. This generally happens when a person did not receive the services that were intended to provide protection, or, if they received those services so late that harm resulted.

A deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements” (P v Cheshire West and Chester Council and another and P and Q v Surrey County Council). Once there is, or is likely to be, a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005 or a community DoL order from the High Court, by consent or otherwise. There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.

The LGO has recently started awarding compensation for poor delivery of the DoLS safeguards, especially where the council has misread the ADASS prioritisation guidance.

Name of CouncilTitle of ReportNumber
Kensington & ChelseaRoyal Borough of Kensington and Chelsea at fault due to poor communication, delay in assessments and delay in care and support.19 008 936
BuckinghamshireBuckinghamshire County Council at fault for failing to safeguard and properly assess a person 18 005 323
BuckinghamshireBuckinghamshire County Council at fault for failing to commence section 42 safeguarding enquiries and for failing to provide a needs assessment 19 000 746
CalderdaleCalderdale Metropolitan Borough Council at fault for arbitrary top up policies, for instructing service users to enter into top up agreement contracts with care homes directly, for failing to identify a suitable care home and for failing to undertake a needs assessment19 009 079
CoventryCoventry City Council at fault for failing to respond to concerns over the outcome of a safeguarding investigation19 010 863
CroydonLondon Borough of Croydon not at fault for its decision to keep a couple in their current care home, as it followed the Code of Practice set out in the Mental Capacity Act 2015 properly.19 007 129
ManyCompensation for risk of or actual physical harm
Plymouth CityPlymouth Council at fault for miscommunication over safeguarding measures 18 017 093
Windsor and MaidenheadWindsor and Maidenhead Council at fault for delays, and failing to communicate, when unacceptable behaviour threatened a placement 18 017 393
Windsor and MaidenheadRoyal Borough of Windsor and Maidenhead at fault for failing to properly consider the risks when separating a married couple of 59 years, failing to provide adequate care and failing to provide appropriate complaint responses18 015 872
East SussexEast Sussex County Council at fault for delays in responding to a section 42 safeguarding concern and for the way it communicated about the client’s charges 19 000 641
HackneyMinimal fault findings for London Borough of Hackney in its response to safeguarding referrals, and a finding to develop its policy of communications management for complainants.19 002 845
LewishamLewisham Council not at fault for not allowing a person to travel abroad19 011 488
LutonLuton Borough Council at fault for failing to make safeguarding enquiries under section 42 of the Care Act 2014 18 016 910
Sheffield CitySheffield City Council at fault for poor care in administering medications 18 016 372
StaffordshireStaffordshire County Council found at fault for decision to use its own policy to avoid carrying out requested DoL Safeguards assessments18 004 809
StaffordshireStaffordshire County Council at fault for delay in reassessment and not meeting an assessed eligible need19 011 306
TamesideTameside Council at fault for failing to carry out a carer’s assessment, and for an inadequate investigation leading to inadequate care 18 011 449
Surrey CountySurrey Council at fault in handling of safeguarding procedure and failing to intervene when a care home refused a patient’s return 18 012 625
South TynesideSouth Tyneside Metropolitan Borough Council at fault for failing to follow assessment guidelines in regards to deafblind clients, failing to backdate direct payments, and failing to investigate restriction of contact imposed by its commissioned care provider15 016 702