Brighton and Hove council was at fault in the way it dealt with the safeguarding concerns raised by an elderly care home resident and his daughter, the Local Government and Social Care Ombudsman has found.
The report said the council failed to properly investigate concerns of abuse raised by Mr Y and one of his daughters, Ms X, causing distress and financial loss to the family.
The council also failed to assess Mr Y’s mental capacity and did not “properly consider” what action to take, according to the ombudsman’s findings.
Mr Y, who was suffering from a terminal medical condition, was placed in a care home because of the effects the illness had had on his health and wellbeing.
In July 2015, Mr Y made allegations of abuse against Ms Z (his other daughter) to staff at the care home, and by phone to Ms X. Mr Y told care home staff and his daughter that Ms Z, who had power of attorney, was accessing his bank account and spending his money inappropriately.
Ms X says she already had concerns about Ms Z’s relationship with Mr Y, although she had not reported it. When she spoke to the care home to report her father’s allegation, staff informed her that they had already reported the concerns to the council.
However, Ms Z was allowed to visit her father several times the day after he had made allegations against her.
Brighton and Hove council considered the concerns under its safeguarding policy and began an enquiry, visiting the care home to meet with Mr Y, Ms Z, and the manager of the care home on 3 August.
Social worker’s report
In the report, the social worker said Mr Y had “variable capacity” but was “okay” on the day of the interview and was “aware [that he had] started to forget arrangements” and got “confused with timescales”.
The council report also said Mr Y “seemed happy to discuss the issues, both with and without Ms Z in the room” and did “not want to change the current arrangements” and that he “trust[ed]” Ms Z.
“In my opinion, on the day of this visit, Mr Y would have capacity to understand and sign such an agreement – it is in keeping with his prior wishes and instructions and he had no trouble today remembering that this had been agreed,” the social worker had concluded.
“He had no reported impairment of the brain and was able to communicate, understand, reason and weigh up the issues raised. Therefore, no formal mental capacity assessment was required,” they added.
Council at fault
The ombudsman found that Brighton and Hove council did consider Mr Y’s capacity. The council noted he had variable capacity, a poor prognosis, memory loss, confusion and that he could not rationalise information about the business.
However, the ombudsman said the council “had clear reasons to question Mr Y’s mental capacity” and “should have completed a capacity assessment to find out if he could decide about the concerns”.
It also highlighted the council was at fault because it caused Ms X uncertainty as she was unsure whether Mr Y could decide to stop the enquiries.
The ombudsman found the council failed to take action for over two weeks after Mr Y made allegations of a potential criminal offence and allowed Ms Z to visit him.
Since the allegations referred to someone who held a registered power of attorney, the ombudsman said Brighton and Hove council should have referred the case to the Office of the Public Guardian (OPG) as per Sussex safeguarding adults policy and procedures.
If Mr Y was assessed as having the capacity to decide, and decided not to take this further, the council should have considered referring to the police against his wishes.
Agreed action
The council has agreed to apologise to Ms X and will set out the actions it has taken or will take to avoid similar problems in future.
It will also pay her £400 for the uncertainty and lost opportunities it caused and will ensure staff know when a capacity assessment should be completed and how it should be recorded.
“The city council accepted the findings of the Local Government & Social Care Ombudsman (LGO) in this case and apologised to the complainant,” said the council.
“We are committed to helping those in need and always investigate when concerns are raised around safeguarding.”
“This complaint concerned events that took place in 2015. Our current practise and monitoring of safeguarding work significantly reduces the risks of a reoccurrence of the issues investigated by the LGO. We will however stay vigilant in this area,” it added.
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So the findings were, a MCA should have been completed even when the Social Worker has given a clear explanation of why they did not. What was the diagnosis of the disturbance of the mind? The MCA has a clear principle of assuming capacity until proven otherwise and the Social Worker who visited him did not believe he lacked capacity. This really frustrates me, you can disagree with professionals however in this case a justifiable decision making was taken. Yet the ombudsman who I would assume has never been a front line social worker completing safeguarding practices has decided they were wrong in this situation again undermines the Social Work profession. I am not saying things could have been done better but I would argue this would be the case in all practice.
I haven’t read the full report but from this article the social worker contradicts himself/herself.Noting variable capacity due to forgetfulness, but then going on to say that he doesn’t meet the two stage test for a formal capacity assessment and has no problems. If his capacity was variable this would highlight to me the requirement for more than one visit and further assessment. I’m not too sure about the rationale for having the daughter in the room who is the accused perpetrator and asking the person in question whether he still wants his daughter who he has reported is financially abusing him to have control of his finances.
If this report is accurate then it looks like pretty shoddy practice to me.
‘“In my opinion, on the day of this visit, Mr Y would have capacity to understand and sign such an agreement – it is in keeping with his prior wishes and instructions and he had no trouble today remembering that this had been agreed,” the social worker had concluded.’
How is that not a mental capacity assessment? What magic is the social worker supposed to use to determine capacity if you can’t gauge it by talking to someone?
That “magic” is called reading and taking on board the documents on file relating to his “terminal medical condition” and what difficulties it gave the person, if a social worker can’t be bothered to even do that, they shouldn’t be in the job.
That’s the difficulty when people assess as fluctuating capacity…in my opinion you either have capacity to make the relevant decision or you don’t