Summary: Mr B complained that the Council treated him with prejudice and discrimination by telling the parents of young people he had been working with that they could no longer use direct payments to continue employing him because of a spent conviction. We have found no fault in the way the Council dealt with the matter.

The complaint

1. Mr B complains that the Council has treated him with prejudice and discrimination by telling the parents of young people he had been working with that they could no longer use direct payments to continue employing him because of a spent conviction. Mr B says he has lost his position as a personal assistant and his reputation as a result.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Direct payments

6. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.

Safeguarding

7. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

Key facts

8. Mr B was employed as a personal assistant (PA) for a vulnerable adult (X) via a direct payment managed by X’s parents.
9. In November 2019 Mr B also began working as a PA for another vulnerable adult (Y) via a direct payment. When Mr B submitted his first invoice for payment Y’s parent contacted the Council’s direct payments team querying Mr B’s hourly rate as this was higher than that the Council had agreed to pay via the direct payment.
10. A direct payment officer conducted an Internet search to find out Mr B’s hourly rate. In doing so, she discovered he had a spent conviction for theft having stolen money from a vulnerable adult he was working with several years previously. Mr B had received a custodial sentence. The officer raised a safeguarding concern.
11. The safeguarding officer telephoned Mr B on 9 December 2019 and raised the issue with him. Mr B provided information about his conviction. The officer told him this situation may affect his ability to practice as a PA but she would seek advice from senior officers and get back to him.
12. The safeguarding officer discussed the issue with her manager and the manager of the direct payments team. They decided Mr B was unsuitable to be a PA because of his previous conviction and the serious nature of the crime. They did not believe Y’s interests would be safeguarded by continuing to allow the family to purchase a service from him.
13. The safeguarding officer told the family that the Council would no longer fund Mr B’s services via a direct payment. She explained that, if they wished to continue employing him privately, they could do so, but the Council would not fund his services.
14. The Council then notified X’s family of the concerns and advised them it would not be funding Mr B’s services via a direct payment but, if they wished to continue employing him privately, that was a matter for them.
15. The Council decided there was no need to complete a safeguarding investigation because the risk had been removed.
16. The safeguarding officer telephoned Mr B on 12 December 2019 to inform him of the Council’s decision.

Analysis

17. Mr B considers the Council has treated him with prejudice and discrimination because of his conviction despite the fact that this was several years ago and he has served his sentence.
18. I am satisfied the Council considered the matter properly before reaching a decision. The safeguarding officer discussed the matter with senior officers. There was no requirement for a full safeguarding investigation because there was no allegation that Mr B had done anything to harm X or Y and officers were satisfied the risk would be removed by stopping the direct payments.
19. In reaching their decision officers considered all relevant information including:
• the date of Mr B’s conviction;
• the serious nature of the offences;
• the person he stole money from had a learning disability and the people he was currently working with also had learning disabilities;
• the nature of working as a PA necessitates working alone with individual citizens;
• Mr B’s views; and
• the views of the families involved.
20. In the absence of fault in the way the decision was reached, there are no grounds to question it.
21. Mr B says the Council could have completed a risk assessment and put in place safeguards to protect the vulnerable adults.
22. The Council says it considered putting safeguards in place to manage the risk and enable Mr B to continue working with the families but decided this was not practicable. It says there were three main factors which led it to this conclusion:
• Mr B’s fundamental unsuitability to act as a PA having stolen money from a vulnerable adult he was working with over a lengthy period. He had demonstrated he could not be trusted to work with vulnerable citizens and the risk could not be managed in any other way except by stopping the direct payment;
• the Council was not employing Mr B and, while it could have made recommendations to the families employing him, it would have been difficult to ensure compliance with those recommendations; and
• one of the families, when informed about Mr B’s conviction, told officers they did not wish to continue employing him.
23. I am satisfied the Council properly considered whether it was possible to put in place safeguards to enable Mr B to continue working with the families. It has explained the reasons for its decision that this was not possible. In the absence of administrative fault, there are no grounds to question this decision.

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Final decision

24. I do not uphold Mr B’s complaint.
25. I have completed my investigation on the basis I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman