Summary: The Council acted in line with section 42 of the Care Act 2014 when responding to Ms X’s complaints about a personal assistant so there is no fault.

The complaint

1. Ms X complains about London Borough of Hackney’s (the Council’s) response to her concerns about a personal assistant (PA). She complains:
1. The PA bullied and harassed her
2. There is a chance the PA may abuse her brother to get back at her for reporting the PA for bullying and harassing her and because she has reported safeguarding concerns at other times. The Council has not taken appropriate action to safeguard her brother.
2. Ms X says this caused her avoidable distress.

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What I investigated

3. I investigated complaint (b). My reasons for not investigating complaint (a) are at the end of this statement.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

6. I considered Ms X’s complaint to the Ombudsman and supporting documents. I also considered information from another of Ms X’s complaints that I investigated previously and the Council’s responses to her complaint.
7. Ms X 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

Relevant law and guidance

8. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42).
9. Enquiries a council makes under section 42 of the Care Act 2014 are known as safeguarding enquiries or a safeguarding investigation.
10. The Council follows the London Multi-Agency Safeguarding Policies and Procedures. The procedures have four stages, which may or may not all be completed, depending on the circumstances of the case:
• Reporting a safeguarding concern
• Making enquiries
• Safeguarding plan and review
• Closing the enquiry
11. Relevant sections of the London safeguarding procedures include:
• A person must make a referral to the local authority, if it appears three steps are met:
1. A person has care and support needs
2. They may be experiencing abuse or neglect
3. They are unable to protect themselves from that abuse because of their care and support needs.
• The person who raised concerns should receive feedback to provide reassurance that action has been taken whether under adult safeguarding or not.

What happened

Background

12. Mr Y is an adult with severe learning disabilities who receives funding from the Council for his care and support. Ms X is Mr Y’s deputy for property and financial affairs. A deputy is a person who manages the finances of another person who cannot because they have a mental impairment. Ms X organises and pays for Mr Y’s care using a direct payment the Council gives her.
13. Mr Y shares a house with another adult. Mr Y and his housemate each have their own PAs who support them during the day, but they share a night PA. Miss X pays half the night PAs wages using some of Mr Y’s direct payment.
14. The Council told me:
• The housemate also has a direct payment, which his relative manages. The housemate’s direct payment is administered through a ‘managed direct payment account’. A managed account is where the Council provides support for another adult to manage the direct payment for the person who needs care
• The housemate’s PAs are not council employees, instead they are employed by the housemate’s relative who receives support and advice from the Council’s direct payment support team.

The incidents

15. Ms X complains about two incidents involving one of the PAs - in August and December 2019. This PA supports Mr Y’s housemate in the day and also does night support for both Mr Y and the housemate.
16. Ms X told us:
• In August, the PA screamed her name repetitively. A second PA overheard this. The PA later said to Ms X not to speak to her ever again. Since then she kept her distance from the PA
• In December, the PA should not have been present in the house because it was after her shift finished. The PA taunted, mocked her and screamed at her after a disagreement about TV and music noise levels. Later, the PA behaved aggressively at the sink Ms X was using. Ms X had to move away so that her hand was not harmed by the fork the PA was washing.
• She reported the incidents to the police and got crime numbers.
• She is unhappy with the delay in the Council’s response to her complaint and that there were no interviews of the carer and the Council did not ask for her video evidence.
17. Ms X complained to the Council in December. The Head of Service responded saying the PA was employed by the housemate’s nominated person. The Head of Service went on to explain Ms X had described a conflict with the PA which she had reported to the police, but the Council saw no reason to take any action because there was no risk to Mr Y.
18. The Council’s response to the complaint in August 2020 said:
• It was not necessary or proportionate to open a safeguarding investigation in response to the issues she raised about the PA
• There were no allegations of abuse or neglect
• The PA is not a council employee
• The PA has been off work since late March and her return to work is not known
• The Council would arrange mediation because there appeared to be tension between Ms X and several of the housemate’s relatives and his PAs.
• It acknowledged she was unhappy with the PA’s behaviour which she perceived as bullying. It was not possible to speak to the PA due to her absence
• Ms X feels the PA will take it out on her brother when she is not in the house, but this is a supposition. Mr Y has his own team of PAs in the day which would give him support and protection from any type of abuse or neglect.

Was there fault?

Complaint (b): There is a chance the PA may abuse Mr Y to get back at her for reporting bullying and harassment and because she has reported safeguarding concerns at other times. The Council has not taken appropriate action to safeguard her brother.

19. The Council does not have to respond to every statement of concern about an adult with care and support needs by conducting a safeguarding investigation. In this case, I am satisfied the Council responded in line with the framework set out in section 42 of the Care Act 2014 and in line with the London guidance described in paragraphs 10 and 11. Ms X raised concerns about the PA’s behaviour towards her and suggested she feared the PA may ‘take it out’ on Mr Y. There is no allegation the PA did anything that could be regarded as abusive or neglectful of Mr Y. Ms X’s fears about the PA’s potential actions in future is not enough to trigger the threshold for the Council to investigate under section 42 of the Care Act 2014 because there was no reasonable cause to suspect abuse. The Council explained this in the complaint response and so Ms X has had appropriate feedback. The Council was correct not take further action under safeguarding procedures because the behaviour Ms X complained about did not place Mr Y at risk of abuse. It was a complaint about a third party’s behaviour towards her and so was not appropriate to pursue under safeguarding processes because Ms X is not an adult in need of care and support.

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Final decision

20. There is no fault in the Council’s actions in response to Ms X’s complaint about a personal assistant’s behaviour.
21. I have completed the investigation.

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Parts of the complaint that I did not investigate

Complaint a: The PA bullied and harassed her.

22. There is no evidence the PA is the Council’s employee. The Council denies the PA is its employee and says any employment relationship is between the PA and the relative who manages the housemate’s direct payment. The PA is an independent third party not acting on the Council’s behalf. We have no power to investigate her actions.

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Investigator's decision on behalf of the Ombudsman