The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council handled an adult safeguarding matter. This is because there is no evidence of fault by the Council. We cannot by law investigate separate issues about the complainant’s concerns of criminal actions which have been referred to and investigated by the police. This is because we have no legal jurisdiction to investigate these complaints.
The complaint
The complainant (Mr P) complains on behalf of her late father (Mr M) who died in residential care at a placement provided to him by the Council. Mr P has concerns of a criminal nature over his father’s death shortly after there being an incident with another resident of the care home. This resulted in a safeguarding referral being made by the care home to the Council. Mr P is not satisfied the incident and circumstances have been investigated.
In summary, Mr P says the alleged fault has meant he and his family feeling let down as they have not received needed information and answers about what happened. He wants the care home and Council to provide him with the full report of the incident involving Mr M and to investigate fully what happened.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating; and/or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We cannot investigate a complaint if it is about action taken by or on behalf of any local policing body in connection with the investigation or prevention of crime. (Local Government Act 1974, Schedule 5, Section 26, paragraph 2 as amended).
How I considered this complaint
I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.
My assessment
The complaint raises two separate issues which are handled procedurally and legally in different ways. This is also relevant to our legal jurisdiction and what we can and cannot by law investigate. Firstly, the complaint concerns what happened in respect of the incident involving Mr M and the other resident and how this relates to adult safeguarding action under the Care Act 2014. The second matter concerns looking at what happened and how this relates to criminal actions and concerns which have been investigated or are being investigated by the police.
Following the incident involving Mr M and the other resident, the matter was reported to the police which investigated and completed a report. Mr M has not seen the police report and does not know what action (if any) was taken. He has concerns about this incident and how this may relate to the death of Mr P the following month. We have no legal jurisdiction to investigate any matter which has been subject to an investigation by a policing body. We also have no legal authority to investigate concerns of a criminal nature. The restriction I outline at Paragraph 4 (above) applies. We do however have jurisdiction to investigate the actions of the Council with respect to meeting its legal safeguarding duties under s.42-47 and s.68 of the Care Act 2014.
The Council has a legal duty under s.42 of the Care Act 2014 which requires it make enquiries, or ensure others do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect. This is so the Council can decide if it or someone else (such as a care provider or the police) should take action to protect the adult from any risk identified. I have assessed Mr P’s complaint by looking at whether the Council’s adult safeguarding procedure in this case was robust enough and properly applied. I consider it was both robust enough and properly applied.
As referred to, there was an incident in August 2023 where another resident at the care home was found lying on top of Mr M in his private room at night. The care home subsequently made an adult safeguarding referral to the Council over the incident which included the concerns held and what actions it had taken in response. The Council assessed the referral and the actions implemented by the care home following the incident. This included regular 15 minutes observations day and night for both Mr M and the other adult, as well as installing a privacy gate. In addition, the care home reported the incident to the police and informed the Care Quality Commission. The care home also offered Mr M an alternative room on a different unit which he declined. The Council considered these actions as adequate to safeguarding Mr M from the risk of harm.
The Council has properly considered its legal responsibilities and followed a safeguarding framework which is consistent with the Care Act 2014. I have not found any evidence of fault by the Council in this matter, including the measures taken which appear appropriate to the circumstances. The Council is entitled to rely on the actions implemented by the care home. When Mr M died in September 2023, the Council closed the safeguarding enquiry. I recognise that Mr P believes the safeguarding case should have remained open due to his concerns, but those concerns are no longer relevant to an active safeguarding matter. Instead, Mr P’s concerns relate to crime and police matter which I have addressed earlier and outlined that we have no legal jurisdiction over.
Final decision
We will not investigate this complaint because there is no evidence of fault by the Council in respect of it meeting its legal adult safeguarding duties. We cannot investigate Mr P’s concerns which relate to a crime and police matter as we have no legal jurisdiction to do so.
Investigator's decision on behalf of the Ombudsman