Summary: Mr X complains the Council has failed to make reasonable adjustments when communicating with him, resulting in avoidable distress and unnecessary time and trouble in pursuing his concerns. The Council has accepted its failings and has taken steps to ensure Mr X receives the service he needs in future. The Council needs to apologise, pay further financial redress and take action to ensure officers understand their duties under the Equality Act 2010.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to make reasonable adjustments when communicating with him, resulting in avoidable distress and unnecessary time and trouble in pursuing his concerns.

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The Ombudsman’s role and powers

2. 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)
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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr X is blind. He needs correspondence in audio format. In December 2020 he asked the Council to put something in writing to confirm his identity for the NHS. The Council wrote to Mr X but did not send him an audio version of the letter. When he asked the Council to send an audio version it agreed to do this. By February 2021 Mr X had not received the audio letter. The Council then told him it could not provide an audio letter as the contract for doing so was out to tender. Mr X then made a complaint.
6. When responding to Mr X’s complaint in March, the Council sent him two letters. The first addressed his initial concern. It said:
• it was sorry it could not facilitate his original request for a letter confirming his identity;
• it was unlikely the NHS would accept unsolicited contact from the Council as proof of identity to support a subject access request;
• if the NHS made a specific request to the Council it would, with his consent, respond to the NHS.
7. The Council’s second letter addressed his formal complaint. It apologised for not sending an audio letter. It told him it had reminded Adult Social Care staff that he needed information in audio format. It noted Mr X said this was a breach of the Equality Act 2010 and the now defunct Poole Borough Council had been held accountable four times for similar problems. The Council said it would learn from its mistakes. It said audio recordings were available and it would include them in its guidance on communications.
8. The Council apologised if Mr X believed a customer service officer had told him they could not take down the details of his complaint in case they took them down wrongly. It said it had reminded customer service officers of the right way to treat callers who wanted to make a complaint. It said it expected its complaints service to be accessible to everyone.
9. The Council agreed to assign a different officer to assess Mr X’s care needs. It sent him audio versions of the letter it sent in December 2020 and the response to his complaint. It said it could not offer a payment via its Adult Social Care complaints process (he had asked for £200 for the distress caused to him) but noted he was discussing this with its Insight, Policy and Performance team. The Council later agreed to pay Mr X £150.
10. The Council asked its Service Unit Equality Champions to flag up Mr X’s need for communications in audio format. It advised staff to call him to let him know when the Council was sending information out to him, so he could decide if he wanted it in audio format. It said this would avoid him receiving information he could not read. It said Poole Borough Council had used a similar system with some success.
11. On 7 April the Council reminded Adult Social Care staff of its accessible information standard. This includes checking communication needs before contacting people and keeping their contact details up-to-date.
12. The Council’s May Adult Social Care accessible formats guidance includes advice on producing audio formats. Its customer service approach to supported access provides for supported access by phone. It says to:
1. promote/suggest online self-service access. This could include support from a care provider, a family member or a community resource such as a library;
2. provide hard/paper copy for completion; or
3. undertake completion via the telephone.
13. The customer service approach to supported access also provides for in person supported access. It says to:
1. promote/suggest online self-service access. This could include support from a care provider, a family member or a community resource such as a library;
2. suggest telephone support;
3. provide a hard/paper copy; or
4. undertake completion by the Council.
14. In response to my enquiries, the Council says:
• it is in the middle of an ambitious transformation programme to harmonise services, systems and functions of four legacy authorities;
• within 12 months it expects to have a single customer relationship management system which will enable it to better identify people’s accessibility needs; and
• since raising his concerns, “officers have given up their personal time to allow him [to] raise his concerns”.

Legal and administrative background

15. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
16. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
17. The ‘protected characteristics’ referred to in the Act include disability.
18. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure 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.
19. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
20. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
21. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

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

22. Rather than respond constructively to a simple request, the Council put obstacles in Mr X’s way. He managed to resolve the issue with the NHS without the Council’s help. However, the Council frustrated his initial attempts to pursue his concerns about the failure to provide appropriate support to him as a blind person. Only because he would not let the matter rest did the Council accept it had failed to support him properly. That was fault by the Council which has caused avoidable distress to Mr X and put him to the time and trouble of pursuing his complaint.
23. It should not be necessary for officers to give up their personal time to “allow” disabled people to raise concerns. Councils have a duty to make reasonable adjustments so disabled people can access services. It is about enabling people to exercise their rights, not allowing them to do something for which they should feel grateful. The Council needs to identify what further action it is going to take to ensure officers understand their duties under the Equality Act.

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Agreed action

24. I recommended the Council:
• within four weeks apologise to Mr X and pay him a further £150 for the distress caused to him and the time and trouble involved in making his complaint; and
• within eight weeks identify the action it is going to take to ensure officers understand their duties under the Equality Act 2010.

The Council has agreed to do this.

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Final decision

25. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman