At Ridouts, we are regularly contacted by providers in relation to issues that they are having with the Local Authority Safeguarding Team and Section 42 safeguarding enquiries. This article considers some of the issues that arise as a result of Local Authorities failing to understand their duties and remit under the Care Act 2014 and what providers can do to protect themselves.
What duties do Local Authorities have under the Care Act 2014?
Under the Care Act 2014, Local Authorities have two specific duties as follows:
- The duty to promote well-being under Section 1 (“s.1”) of the Care Act 2014
- The duty of enquiry under Section 42 (“s.42”) of the Care Act 2014
- The duty to promote well-being
Under s.1 of the Care Act 2014, Local Authorities have an overarching duty to promote the well-being of individuals. However, to promote well-being it should be first be assumed that individuals are best placed to judge their own well-being. Their individual views, beliefs, feelings, and wishes are paramount and individuals should be empowered to participate as fully as possible.
In our experience at Ridouts, Local Authorities often fail to assume that individuals are best placed to judge their own wellbeing. In situations where Local Authorities believe that there are safeguarding issues in a service, they regularly take it upon themselves to carry out a ‘review’ of all service users, whether or not they have capacity, are privately funded or funded by other placing authorities. This is wrong and could be viewed as a Local Authority abusing its powers.
With regards to privately funded service users, if they have capacity it is for them to choose whether or not the Local Authority carries out a review of their care needs. Under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, a person has the right to respect for their private life. Therefore, they must consent to a review being carried out of their care needs. If a service user is unable to consent because they lack capacity, then the person with Power of Attorney for health and welfare for the service user should be spoken to or an advocate who can act on behalf of the service user.
- The duty of enquiry
Under s.42 of the Care Act 2014, Local Authorities are required to make enquiries if they have reasonable cause to suspect that an adult with care or support needs is experiencing, or is at risk of, abuse or neglect and as a result of those needs is unable to protect themselves against the abuse or the risk of it.
At times, Local Authorities seem to think that they have a general duty of investigation under s.42 but they do not. The Local Authority only has a duty of enquiry if they have reasonable cause to suspect that an adult in its area is experiencing or is at risk of abuse or neglect. Even if it is established that abuse or neglect has taken place in the past, in order to comply with the legislative requirements, the Local Authority must consider if the adult is currently experiencing or is at risk of experiencing abuse or neglect. The risk must be current and not in the past. The whole purpose of a s.42 investigation is to eliminate or reduce current risks of abuse or neglect in relation to identified individuals. It is wrong for Local Authorities to investigate issues that are no longer current under the remit of a s.42 enquiry.
If a Local Authority deems that the criteria under s.42 of the Care Act 2014 has been met, they must provide specific reasons as to why they have reasonable cause to suspect that an adult is at risk of abuse or neglect. There must be credible evidence in relation to individual service users. Simply stating that there are general safeguarding concerns is not credible evidence.
Safeguarding teams lowering the thresholds for reporting concerns
Another issue which providers have told us about is in relation to safeguarding teams lowering the threshold for reporting safeguarding concerns. An example of this relates to a service user rolling from a low profile bed onto a crash mat on the floor but not suffering harm and the expectation that this is reported. This leads to a situation of over-reporting and takes managers and staff away from their daily care duties.
The lowering of thresholds to make a determination that a s.42 enquiry is necessary is very concerning as it can mean that safeguarding investigations are left open for a period of time whilst they are ‘investigated’.
When there are a number of open safeguarding investigations at any one time, there is a risk that Local Authorities consider them as a whole rather than on an individual case by case basis. Providers are not given sufficient opportunity to respond to allegations and put their case forward. In turn this can lead to safeguarding officers failing to corroborate all available evidence and concluding that safeguarding allegations are substantiated.
If there are a number of open safeguarding investigations, it can give the impression to service users, their relatives and other relevant stakeholders that the service is unsafe. This can cause the Local Authority and other placing authorities to suspend further placements, cancel contracts and remove service users from their care.
Conclusion – What can providers do to protect themselves?
Safeguarding investigations expose providers to intense scrutiny and it is important to take them seriously as they can spiral. Providers are not always given full disclosure of the allegations against them and they are regularly called to attend safeguarding meetings at short notice without an agenda. It is crucial that providers know what the allegations are in advance of a meeting so that they can properly prepare and they should be given sufficient time to do this.
If a Local Authority is being difficult, it is often helpful for providers to seek legal advice. A solicitor can liaise with the safeguarding team and manage requests for information or evidence. Having a solicitor present in a safeguarding meeting can also help to ensure that the Local Authority is behaving appropriately and hold them accountable if not.
At Ridouts we support providers with a range of issues relating to safeguarding. If you require assistance or advice in relation to any issues with your Local Authority Safeguarding Team, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address info@ridout-law.com or by calling 0207 317 0340.
