Summary: We will not investigate this complaint about the Council refusing a reasonable adjustment under the Equality Act 2010. There is not enough evidence of fault. The Council considered the request, explained its reason to refuse, and offered an alternative. The Ombudsman cannot decide the Council has breached the Equality Act, the complainant can make a claim of disability discrimination to court.

The complaint

1. Mr B says the Council refused to accept a request under the Equality Act 2010 for a reasonable adjustment to record his care needs assessment. The assessment has not gone ahead because of this disagreement, which means Mr B has not had his needs assessed and is without support from the Council. Mr B is arranging his own care privately, which has a financial impact. This is also affecting Mr B’s wellbeing. Mr B is upset he could not use his friend as an advocate. Mr B would like an investigation, service improvements, a council arranged and funded care package, an apology and a financial remedy.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council needs to assess Mr B’s adult social care needs to find out whether he has any needs the Council is responsible to meet. Mr B asked to record the assessment, so he has something to refer to, as he struggles to process, understand and retain information.
8. The Equality Act 2010 sets out the reasonable adjustment duty which applies to the Council. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
9. If the adjustments are reasonable, the Council must make them. But the Council can refuse adjustments it does not consider reasonable. For example, because of the cost or resource required, and if there are alternative ways for the individual to achieve the same outcome.
10. The Council refused Mr B’s request because its staff do not feel comfortable being recorded, and therefore it has a resource issue to meet the request. The Council has offered an alternative adjustment of providing a minute taker and giving Mr B a written account of the meeting, so he has a document to refer to.
11. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
12. Organisations can show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
13. The Ombudsman is not an appeal body. We cannot challenge the Council’s decision unless there is fault in its decision making. In this case, I am satisfied the Council has considered Mr B’s request, responded to it explaining its reasons for refusal, and offered an alternative way to achieve the same outcome. Mr B has challenged this through the Council’s complaint process.
14. Mr B also says the Council will not allow him to use his preferred advocate, his friend Mr X. The Council says Mr B knows why the Council will not accept advocacy from Mr X. The Council arranged a professional advocate for Mr B, so although he was disappointed by this there is not a significant enough injustice. The Council said Mr X could be present at meetings to support Mr B and could take notes, but it would not accept any instructions from Mr X. Again, the Ombudsman cannot challenge the Council’s decision where there is not enough evidence of fault in its process.
15. There is a significant impact on Mr B as he has not had an assessment which he needs and is arranging and funding his own care support. However, we cannot say that impact is caused by fault of the Council.

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Final decision

16. We will not investigate Mr B’s complaint because there is not enough evidence of fault. Mr B can seek legal advice regarding his concern about disability discrimination. That is not a decision the Ombudsman can make so it is reasonable for Mr B to go to court.

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Investigator's decision on behalf of the Ombudsman