The Ombudsman's final decision:
Summary: The Council failed to follow the correct procedure to identify an appropriate adult to support Mr X when he was arrested. This was fault and led to Mr X being detained longer than necessary.
- Mr X complains the Council refused to provide an Appropriate Adult (AA) when he was arrested by the Police. Mr X says this meant he was kept at the police station for six to seven hours which caused him a great deal of anxiety.
- Mr X believes the Council discriminated against him because the Council treated him as though he had a mental disorder, which he does not. Mr X is autistic and his arrest was related to a situation which he says was related to his protected characteristics / autism. Mr X says the Council used a similar incident several years previously as a reason not to assist him.
- Mr X considers the Council should have provided an AA on the same basis as it would for any other member of the public.
What I have investigated
- I have investigated the Council’s actions in relation to the above complaint. For the reasons set out below I cannot investigate:
- The actions of the Police
- The actions of the national health service (NHS).
The Ombudsman’s role and powers
- 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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate the conduct of criminal proceedings including the actions of the Police. (Local Government Act 1974, Schedule 5(1))
- 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)
- The Equality Act 2010 allows individuals to make claims of discrimination to the County Court. The Ombudsman would not investigate where someone is seeking compensation for unlawful discrimination, as that would be a matter for the court. The Ombudsman can consider a complaint where someone is seeking service improvements and / or a remedy for personal injustice as a result of a failure to make reasonable adjustments when requested.
- We can investigate the administrative functions of councils. Where councils have been contracted by other bodies to deliver activities on their behalf, we would expect councils to act appropriately and we can investigate and potentially find fault in their actions in those situations.
- 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)
- 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)
How I considered this complaint
- I have considered information provided by the Council and Mr X including the complaint correspondence and Council’s records.
- I have considered relevant law and guidance.
- I have considered the Ombudsman’s Guidance on Remedies.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- The Equality Act 2010 provides protection from unlawful discrimination. An organisation that provides services to the public must not treat someone worse or do something that has a worse impact on them because of one or more protected characteristics.
- The Government has issued ‘Statutory Guidance for Local authorities and NHS organisations to support the implementation of the Adult Autism Strategy’ under Section 2 of the Autism Act 2009. Councils must take account of this guidance and follow it or provide a good reason why they are not doing so. The Guidance says:
- Councils should improve training of staff including general autism awareness training and also different levels of specialist training where this is needed to fulfil heir responsibilities.
- Staff should be trained to use appropriate communication skills when supporting a person with autism and to recognise when a person with autism is experiencing stress and anxiety and support them with this and to understand the issues which arise from co-occurrence of mental ill health and autism.
- People with autism need access to support if in contact with the criminal justice system whether as a victim, witness or if they are suspected of committing a crime.
- When Mr X was arrested in November 2019, the Police identified he was vulnerable and needed an AA to be present. The Police contacted the Council who it had contracted to provide this service on its behalf.
- The Council told Mr X in its stage one complaint response that when it was contacted by the Police, enquiries were made as to who would be most appropriate person to support him. The Council said it was informed by the Liaison and Diversion Mental Health service that it would need to complete a mental health assessment before any police interview could take place and this may have led to some of the delay in responding to the Police.
- Mr X was known to the Council’s adult social care team. The Council said internal discussions were held to consider who would be best to support Mr X given his diagnosis and difficulties. It was thought that the most important person was a doctor or Mr X’s care worker / advocate from an autism specific third sector organisation. The Council said this was because it believed Mr X would be best supported by someone who knew him.
- The Council said Mr X’s social worker contacted the doctor and care worker but they were not able to assist. The Council then informed the Police no-one would be attending to support Mr X.
- The Council acknowledged that when the two people were unable to help it should have provided an AA through the usual route and apologised for any distress this caused Mr X.
- The Council denied discriminating against Mr X.
- The Council said when Mr X attended the police station in December for an arranged interview, Mr X’s social worker was informed that morning and agreed to attend and act as Mr X’s AA. The Council said it contacted the Police an hour after it was first informed, and the Police said Mr X’s Solicitor had arrived with two other people who were going to support Mr X and act as his AA. Therefore, the Council did not provide an AA.
- The Council upheld Mr X’s complaint as it had failed to provide an AA on the first occasion. It said it had now ensured all social work teams have a list of who can act as an AA.
- Mr X asked for his complaint to be considered at Stage Two. Mr X questioned the need for a mental health assessment and said this has never been a requirement for an AA to be provided. Mr X also questioned the logic of asking a busy doctor to attend and said the advocate was a service he paid for personally so would not have been able to assist.
- Mr X’s Solicitor also questioned the Council’s account stating that he was unaware of any request for a mental health assessment and none was ever carried out. The Solicitor was in contact with the Police on both occasions and was informed on the first occasion the Council would not be sending an AA ‘due to previous dealings with Mr X’. The Solicitor said he challenged this view with the Police stating he had supported Mr X at the Police station previously without incident. The Solicitor also rang the two people suggested by the Council and neither could assist. The Solicitor then persuaded the Police that as no AA was going to attend Mr X be released for interview at a later date, as Mr X was a vulnerable person who had been held in custody some time, and this is what happened.
- The Solicitor says Mr X then attended in December for a voluntary interview. The Solicitor says he advised the Police Mr X would require an AA. The Police then asked the Solicitor to arrange this, but he declined as it was not part of his job but said ‘if all else failed’ he would bring an additional adult to the interview to act as AA. The Solicitor says he spoke to the Police again on the day of the interview. The Police told him they had contacted the Council that morning about an AA and would call the Solicitor back, but the Police failed to do so. The Solicitor then arranged for a trainee to attend with him, but no third person attended. The Solicitor considers the Police must have cancelled the AA request with the Council as if an AA had been provided his trainee would have returned to the office.
- Mr X’s Solicitor suggested Mr X’s complaint on the second occasion lay with the Police as it, not the Council, had cancelled the AA.
- The Council responded at Stage Two repeating the position given at Stage One. The Council said it had no statutory responsibility to provide an AA to a member of the public or a social care client. It stated it was however good practice to do so. It had a number of people trained to act as an AA and it said it was developing a policy to make it clearer in future the expectations of providing this type of support.
- Mr X complained to the Ombudsman. He disagreed the Council had discretion whether to provide an AA as the Police had confirmed to him the Council held the contract for providing AA’s to police stations in the area. If Mr X had not been autistic, he says an AA from the usual service would have been sent out.
- The Council’s records at 11.44 show the Police requested an AA because Mr X was vulnerable and ‘had mental health issues, has a care worker but they are refusing to come out as they don’t get paid’. The Police chased the Council at 13.31 but the Council advised an AA could not be guaranteed.
- At 13.44 a council officer stated they had received a call from the Liaison and Diversion (L&D) Mental Health service. This is an NHS service which supports vulnerable people who come into contact with the criminal justice service. The L&D officer advised Mr X had been arrested due to historic complaints about comments and complaints he had made against a housing officer. The social worker considered that previous social care support for Mr X around his tenancy had not been successful at preventing such incidents and that it may now be appropriate to refer Mr X to mental health services. L&D had stated they would do a mental health assessment to see if Mr X needed to be detained under the Mental Health Act.
- The records indicate the social worker was not willing to attend the police station as Mr X needed to be assessed for his mental health first, which was underway (by L&D team) and because the social worker would not feel safe due to Mr X’s previous actions against the housing officer.
- Five days later the Council recorded Mr X had made a complaint about the failure to provide an AA based on fabricated derogatory information about him and an incident that happened 5-6 years previously.
Mr X’s comments on draft decision
- Mr X told me he did not know the L&D service was a NHS organisation and so did not complain to the NHS. Mr X considered the Council should still have formed its own view whether he had mental health problems or was a threat and he found it frustrating that people often misunderstood autism for mental health problems.
- Mr X took issue with the reasons given by the social worker not to attend as AA. Mr X said the same social worker had stayed involved in his case and accompanied him to other meetings. Mr X said the social worker should have raised any concern with supporting him with a manager. Mr X felt the social worker was looking for an excuse not to attend and did not understand autism.
- Mr X says he has never been convicted of a crime.
- The police had the legal duty to ensure Mr X had an appropriate adult during questioning. The Council was however contracted by the police to provide appropriate adults to the police when needed.
- The Police alerted the Council and the NHS L&D service to Mr X’s arrest. It was the Police and the L&D service, not the Council, which referred to Mr X as having mental health problems. It was the L&D service that suggested Mr X needed a mental health assessment to see whether he needed to be detained under the Mental Health Act. Mr X has not made a complaint to the NHS and I cannot investigate the actions of the Police as they are not within our remit. (Local Government Act 1974, Schedule 5(1))
- The Council’s social worker’s comments about mental health assessment appear to relate to information provided to her by the NHS L&D team. I am not persuaded it was fault by the Council to accept the advice given by the NHS team that a mental health assessment was required.
- The social worker did decline to support Mr X as an AA, not due to an incident 5-6 years previously (as Mr X thought), but because the police had arrested Mr X in connection with alleged harassment of a housing officer and she did not feel safe to do so in case this led to similar behaviour against her. I acknowledge Mr X is dubious about this reasoning given the social worker supported him before and after this incident.
- It was not fault for the Council to consider whether a social worker, care worker or doctor known to Mr X should support him as an AA. However, when all three declined to do so, Mr X should have been offered an AA through the usual process as though he were any other member of the public, not because the Council had a statutory duty to provide the AA, but because it held the Police contract to do so.
- Mr X is correct to say that autism is not in itself a mental health condition and behaviours associated with autism can be misunderstood. The social worker’s records indicate that previous support had not been successful and this, together with the NHS advice that an assessment should take place, suggested to the social worker it was not clear whether Mr X’s behaviour could be explained by autism or other factors on this occasion. This is not enough evidence to say the social worker confused autism and a mental health condition. There is no evidence the Council refused to provide an AA because Mr X is autistic.
- Mr X was correct to say that (unless Mr X was presenting in a way that may require detention under the Mental Health Act - and there is no evidence this was the case) there was no requirement to have a mental health assessment prior to providing an AA.
- The Council did not give a full account of what happened at Stage One. It did not explain that in addition to a doctor and support worker being unable to assist Mr X, the social worker had also declined to act as AA. It did not explain that this was due to concerns about Mr X’s behaviour against a housing officer. The Council did say social workers would be provided with a list of who could act as AA’s. This implies this information was not available to the social worker at the time, which led to the officer advising the Police no AA would be provided.
- I find the Council failed to follow the correct procedure to identify a suitable alternative when Mr X's support worker, social worker and doctor were unable to attend as an appropriate adult. This was fault. Mr X was only released from the Police station due to the intervention of his Solicitor.
- I do not find fault by the Council in failing to provide an AA on the second occasion as the AA was cancelled by the Police, not the Council. I cannot investigate the actions of the Police.
- The Council has accepted during the complaint procedure it should have provided an AA from its usual list of trained persons. It has apologised, reviewed its practice and is developing a policy to prevent similar incidents occurring in future. These are the actions the Ombudsman would recommend when it finds fault.
- The Council has not considered whether it should offer a financial remedy for Mr X’s inconvenience and distress. I am satisfied a payment to acknowledge the impact of the delay to Mr X when he was detained at the Police station longer than necessary is merited.
- Within four weeks of my final decision the Council will pay Mr X £150 to acknowledge that it failed to provide an AA in the usual way which led to him being kept at the police station longer than necessary.
- I have completed my investigation. The Council failed to follow the correct procedure to identify an appropriate adult to support Mr X when he was arrested. This was fault and led to Mr X being detained longer than necessary.
Investigator's decision on behalf of the Ombudsman