Summary: X complains about maladministration, prejudice and bias, and a failure to make reasonable adjustments under the Equality Act 2010. Much of X’s complaint is outside our jurisdiction to investigate as he started legal proceedings against the Council in December 2018 and, in any case, we cannot accept late complaints about events which happened years ago. Some of his complaints fall within the jurisdiction of other bodies. Regarding the more recent events which are within our jurisdiction to investigate, there is no evidence of injustice to X which requires a remedy. However, the Council was at fault for referring to an out of date policy when reviewing the restrictions placed on his contact with it.

The complaint

1. The complainant, whom I shall refer to as X, complains about maladministration, prejudice and bias, and a failure to make reasonable adjustments under the Equality Act 2010.
2. His complaint covers a wide range of events from childhood abuse, failing to disclose information about this to the NHS in 1996, to restrictions on access/contact imposed by the Council and still in place. Most of his complaint is outside our jurisdiction to investigate (see paragraph 29 below).

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What I have investigated

3. I have investigated events since December 2018.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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, sections 30(1B) and 34H(i), as amended)
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, sections 26(6)(c), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I have:
• considered the complaint and the documents provided by X (over 160 e-mails and over 300 attachments);
• discussed the complaint with X;
• considered the comments and documents the Council has provided; and
• shared a draft of this statement with X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

9. X has had a diagnosis of autism since 2017.
10. In December 2018 X made a claim against the Council in the County Court for damages not exceeding £30,000. The claim related to contraventions of the Equality Act 2010. X did not pursue the claim when his Solicitor told him he would not qualify for legal aid.

Assessing X’s care needs

11. In April 2018 X complained to us about the Council’s handling of his care needs assessment. We closed the complaint in May 2018 because we could not assess the injustice to him when the Council had not yet completed its assessment. We told X he could complain again when the Council completed the assessment.
12. X contacted us again in February 2019.
13. The Council completed an assessment of X’s needs in March 2019. It identified eligible care needs as he cannot meet these outcomes without support:
• making use of the home safely;
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships; and
• accessing and engaging in work, training, education or volunteering.
14. The Council proposed meeting X’s eligible care needs using a personal assistant for three hours a week to help him meet the above outcomes. The Council proposed setting this out in a care and support plan but X has not engaged with the process. The Council offered to refer X to Supporting People for housing related support services but he turned this down as it had “proved unsuccessful in the past”.
15. When X complained to the Council it recorded his complaint as the Council:
• “has, after some delay, completed an assessment of his needs, but he is not happy with it because he says the Council has failed to follow the Care Programme Approach (an NHS term used in mental health settings) and has breached Regulation 13 (section 13 Care Act 2014 requires a decision on eligibility against the criteria specified in the Care and Support (Eligibility Criteria) Regulations 2015).”
16. The Council responded to X’s complaint on 9 April. It made these comments about events since December 2018:
• in January 2019 the Council told X a Clinical Psychologist could not assess him jointly with the Council under the Care Act 2014. It offered dates for an assessment. X stopped working with an independent advocate and agreed to meet his Social Worker on 1 February;
• the Social Worker started her assessment on 1 February. A friend supported X. X asked the Social Worker to put the assessment on hold because of a disagreement over what is a social care need and what is a psychological need;
• X contacted his Social Worker in February and arranged another meeting for 1 March, after which she completed the assessment;
• the Care Programme Approach is used by Community Mental Health Teams, not by the Council for assessments under the Care Act 2014. X should contact his Doctor if he thinks the Care Programme Approach is relevant to him;
• the assessment had confirmed that X has eligible care needs (see paragraph 12 above);
• it was waiting to hear from X about how he wants to develop his care and support package.
17. X says:
• an independent advocate, not a friend, supported him at the meeting on 1 February;
• he did not ask the Social Worker to put the assessment on hold;
• he did not contact the Social Worker in February, she contacted him;
• the Social Worker did not complete the assessment;
• health authorities were given lead responsibility for implementing the Care Programme Approach but health and social care authorities had to reach inter-agency agreements to ensure full implementation;
• the assessment did not take account of X’s full needs, including a September 2019 diagnosis of Complex Post Traumatic Stress Syndrome;
•  
18. When the Council wrote to X on 9 July it said:
• “You have undergone an Adult Social Care assessment but have not as yet engaged with the Isle of Wight Council in the care planning process. The offer to you to engage in this process remains open and if you indicate in a letter to the Complaints Officer that you wish to engage in the care planning process this will be passed to Adult Social Care.”
19. X says the Council’s assessment was not carried out in accordance with paragraph 6.88 of the Care and Support Statutory Guidance which says:
• “Where the assessor does not have the necessary knowledge of a particular condition or circumstance, they must consult someone who has relevant expertise. This is to ensure that the assessor can ask the right questions relating to the condition and interpret these appropriately to identify underlying needs. A person with relevant expertise can be considered as somebody who, either through training or experience, has acquired knowledge or skill of the particular condition or circumstance. Such a person may be a doctor or health professional, or an expert from the voluntary sector, but there is no obligation for the local authority to source an expert from an outside body if the expertise is available in house.”
20. The Council says the Social Worker who assessed X has “many years of experience of working with individuals with the diagnosis of autism and focusing on this diagnosis to ensure the best outcome for the individual”. She has attended various training courses about autism, including training provided by the National Autistic Society about Asperger’s Syndrome.
21. When asked what he wanted from the Council’s assessment, X said he wanted a therapeutic relationship. He says the Social Worker offered to arrange funding and refer him for therapy.

Restrictions on access/contact

22. In September 2017 we told X we would not investigate a complaint about the Council’s decision to restrict his contact, as we would be unlikely to find fault with it.
23. On 9 July 2019 the Council wrote to X. It said:
• “As a result of your continued lengthy email communications, complaints and repetitive requests to this council in relation to matters that you have previously raised and that have been dealt with, and the previous warning given to you, the Council has reviewed your behaviour under its Unacceptable Behaviour Policy and decided to restrict your contact again”.
• X can only write to the Council by letter to its Complaints Officer;
• X cannot telephone or e-mail;
• X cannot visit its offices or access its services without prior arrangement;
• it would manage X’s correspondence centrally;
• it would review the restriction in 12 months.
24. The Council says the restriction on accessing services does not apply to public libraries, which X makes use of.
25. The Council referred to its Unacceptable Behaviour Policy and these reasons for putting the restrictions in place:
• “a person who presents the same issues repeatedly (exactly or with minor differences) but never accepts the explanations & outcomes. This can take the form of excessive phone calls, visits to Council offices or written communications”
• “a person who seeks an unrealistic outcome and persists until it is reached; or”
• “a person who has previously shown patterns of unreasonable persistence”
• “contact with the local authority is frequent, lengthy, complicated and stressful for staff”
• “aggressive behaviour towards staff or members which may be expressed in verbal abuse or threatening, threatened or actual physical harm”
• “repeated approaches to different staff or members of the local authority about the same issue”
26. On 2 August the Council agreed X can communicate with it by e-mail to a single e-mail address, rather than by post.
27. The Council’s Unacceptable Behaviour Policy (updated in August 2017), says unreasonable behaviour may include, but is not limited to, one or more of these features:
• “presenting the same issues repeatedly (exactly or with minor differences) but never accepting the explanations & outcomes.”
• “seeking unrealistic outcomes and persisting until it is reached”
• “pursuing a complaint where the council’s complaints process has been fully and properly implemented and exhausted”
• “making groundless complaints about employees”
• “attempting to use the complaints procedure to pursue a personal vendetta against an employee or team (professionally or personally)”
• “contact with the local authority is disproportionately frequent, lengthy, complicated and stressful for staff”
• “raising large numbers of detailed but unimportant questions and insisting they are fully answered”
• “making and breaking contact with the local authority on an ongoing basis without proper justification”
• “demands impose a significant burden on resources of the council and where the contact:”
1. “clearly does not have any serious purpose or value;”
2. “is designed to cause disruption or annoyance;”
3. “has the effect of harassing the public authority;”
• “making personal or derogatory comments on social media directed or indirectly at individual staff members in relation to their job or the way it is carried out”.
28. The Council has confirmed that X can visit public libraries without prior notice.

Is there evidence of fault by the Council which caused injustice?

Assessing X’s care needs

29. The Council was not at fault for not using the Care Programme Approach since December 2018. This would only be used for people receiving support from mental health services. That does not apply to X.
30. The Council has assessed X and accepts he has eligible care needs under the Care Act 2014. I have seen no evidence to suggest the assessment was affected by fault. His Social Worker is qualified to do assessments under the Care Act, including assessments of people with a diagnosis of autism. The Council has offered to complete the process by agreeing a care and support plan with X but he has not taken up the offer. It remains open to him to do so.
31. Under Section 22 of the Care Act, councils cannot provide services which should be provided by the NHS. This would apply to therapy. The Social Worker may have offered to refer X for therapy (e.g. via his GP), but the Council could not have provided this itself. The Social Worker’s offer to arrange funding was for the three hours a week of support she had proposed to include in a care and support plan. To access this support it remains open to X to contact the Council to complete the care and support planning process.

Restrictions on access/contact

32. It appears the Council was quoting from a previous version of its policy when it reviewed the restrictions on X’s contact and wrote to him in July 2019. That was fault by the Council. I have considered whether this undermines the Council’s decision but have decided it does not. While the paragraphs the Council claimed to be quoting do not all appear in the current policy, that policy makes it clear unreasonable behaviours are not limited to those listed in it.
33. The evidence from our own contact with X on his complaint supports what the Council has said about “lengthy email communications, complaints and repetitive requests”. The restrictions the Council has put in place do not prevent X from accessing its services, making complaints, subject access requests or freedom of information requests, but requires him to do this in writing and via a single point of contact. This is reflected in the fact he has had an assessment of his needs and received responses to his complaints. Nor have the restrictions prevented him from visiting council offices, provided he made a prior arrangement. The restrictions do not apply to visiting public libraries, although that was not clear from the Council’s letter of 9 July 2019.
34. The Council agreed to review the restrictions on X, so it can consider them within the context of its current policy and make it clear that they do not apply to visiting public libraries. It has now done that. It has reimposed the restriction on contacting the Council by e-mail because of the volume of e-mails he has set in a short space of time.

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Final decision

35. I have completed my investigation as there is not enough evidence of fault by the Council causing injustice to justify recommending a remedy.

Parts of the complaint I did not investigate

36. Because of the restriction in paragraph 6 above, I have not investigated X’s complaint that the Council has contravened the Equality Act 2010. Nor have I investigated events before X submitted his claim to the Court in December 2018. There is no discretion to investigate a complaint once someone has commenced legal proceedings. That X did not pursue his claim when he failed to qualify for legal aid does not alter that fact. Besides, because of the restriction in paragraph 7 above, we would not in any case be able to investigate events before mid-2017, when X asked the Council to assess his needs.
37. I have not investigated X’s complaint about his housing provider and the lack of support it has provided to him since 2008. It is not clear what role, if any, the Council had to play in commissioning support in 2008. Either way, the events happened too long ago for us to investigate (see paragraph 7 above). This restriction also applies to other events dating back to 2008. The issues X has raised about disrepair in his home fall within the remit of the Housing Ombudsman.
38. I have not investigated X’s complaint about the Council holding inaccurate personal data about him. This falls within the remit of the Information Commissioner, not the Local Government and Social Care Ombudsman. The same applies to X’s complaints about the Council’s failure to respond properly to his subject access requests. The Information Commissioner is responsible for upholding information rights in the public interest.
39. I have not investigated X’s complaint about the Council’s handling of his complaint about an advocacy service. This is because the Council responded to that complaint after I started my investigation. X would need to make a separate complaint about this matter.

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Investigator's decision on behalf of the Ombudsman