Summary: Mr C complained about how the Council carried out recommendations set out in an action plan regarding its Community Mental Health Services and how it communicated with him. We found some fault by the Council as it caused delay in implementing it plan and how it communicated with Mr C. The Council should apologise to him to acknowledge the distress and uncertainty this caused. We will not investigate other parts of Mr C’s complaint as this related to potential injustice to other service user and decisions considered in a previous Ombudsman investigation.

The complaint

1. The complainant, Mr C, complained about how the Council dealt with agreed recommendations in an independent report from 2022, which found it had not adhered to its public sector equality duty when it restructured its Community Mental Health Services. Mr C said it had:
• caused delays to progress the recommendations set out in an action plan, and not enough action was taken;
• failed to keep service users informed about the progress and respond to questions from Mr C, a local councillor and an MP; and
• wrongly refused to respond further to Mr C’s communication and complaints.
2. Mr C also said he knew of other service users who had been significantly impacted by the Council’s decision to restructure its Community Mental Health Services.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)
6. If we are satisfied with an organisation’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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What I have and have not investigated

7. I have investigated the Council’s handling of implementing its action plan, and how the Council communicated with Mr C since September 2023.
8. I have not investigated Mr C’s concerns about:
• the Council’s handling of the action plan or its communication with Mr C before September 2023. This is because this period was considered in a previous Ombudsman decision; and
• any impact or injustice the Council’s restructure of its Community Mental Health services or handling of its action plan had on other service users of the hub. This is because I can only consider Mr C’s complaint and the injustice he may have experienced as part of this investigation. Any other service users have the right to complain to the Council if they believe it has failed to provide support they were entitled to.

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How I considered this complaint

9. As part of my investigation, I have:
• considered Mr C’s complaints and the Council’s responses;
• discussed the complaint with Mr C and considered the information he and the Council provided; and
• had regard to any relevant law or policy to the complaint.
10. Mr C 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

Equality Act 2010

11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance 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.
12. 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.
13. The ‘protected characteristics’ referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.
14. 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 or not an organisation has properly taken account of an individual’s rights in its treatment of them.
15. Organisations will often be able to 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.

Public sector equality duty

16. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
17. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Background

18. The Council arranged a review of its Community Mental Health Services in 2019. It started a restructuring of the service in late 2020. This was further impacted by the outbreak of COVID-19 which meant most of its services were delivered virtually.
19. Mr C was using and volunteering at a hub which was impacted by the Council’s restructure of the Community Mental Health Services. Mr C and around 160 service users had benefitted from a space, access to activities and social events, and support from key workers within the hub.
20. However, by early 2021 the Council’s changes meant services at the hub was no longer available and new processes were put in place for its redesigned service.
21. Mr C and other service users of the hub complained to the Council. The Council agreed to an independent investigation and for Mr C to be one of the spokespersons for the wider group of individuals. The outcome of the independent investigation was published in a report in Autumn 2022. This found the Council had failed to adhere to its public sector equality duty when restructuring its Community Mental Health Services. It made a number of recommendations the Council should action, which the Council agreed to. It created an action plan to complete the recommendations.
22. Mr C was not satisfied with the outcome and asked the Ombudsman to consider the complaint in September 2023. We ended our investigation as we found we could not achieve anything further than what had already been recommended, and the Council remained in communication with Mr C and some service users.

What happened

23. Mr C continued to raise his concerns to the Council. He said it had accepted the recommendations in the independent report, but had failed, or were refusing, to communicate on the progress of the recommendations. He also shared his disagreement with the reduction or removal of services which had and continued to impact previous service users of the hub.
24. In response the Council told Mr C it had since the independent report findings:
• offered previous service users of the hub alternative provision for art related activities and socialising, but the person organising the service had declined its offer for a space which it found to be suitable and remains available;
• it had met with previous service users of the hub on several occasions. This included how they could get access to the hub building to collect equipment and resolve any financial losses from any loss of equipment. It explained a visit was arranged in September 2023 and it would hold items for collection for two years;
• it had explained it was not possible to find the 160 service users. However, it was aware many users had found other activities and had not approached the Council for support. It had recommended for any service users who needed support to contact their GP or for their details to be passed to the Council to contact;
• worked on its action plan which was still in progress. It said it could arrange a meeting with the service user group to update on its progress; and
• its Head of Equality had previously met Mr C and explained any concerns about discrimination would be part of its considerations.
25. The Council also told Mr C it had no further case to respond to as the Ombudsman had found it had completed its responsibilities. It would therefore not investigate his concerns further.
26. Mr C remained unhappy with the Council’s responses and approached his local councillor and local MP. The MP wrote to the Council on behalf of service users of the hub. The MP asked the Council to comment on concerns including:
• how users could submit claims for damaged or missing property they had stored in the hub;
• when the Council expected to respond to the recommendations in the independent report; and
• what an outline of the Council’s plans for a future service looks like, and whether there would be a space for service users with storage and access to keyworker support.
27. In January 2024 the Council shared an updated action plan, which set out the steps the Council had taken for each of the independent report recommendations. This included its Equality Impact Assessment which had been completed in late 2023.
28. In March 2024 the Council again told Mr C it had already responded to his concerns and his complaint had completed its complaints process. It would therefore not respond further regarding the same matter. It shared its Equality Impact Assessment with Mr C.
29. Mr C remains unhappy about how the Council has handled the independent report recommendations, and how it has kept him, and previous service users, informed about progress of its action plan.

Analysis and findings

The Council’s handling of the independent report recommendations

30. The Council agreed with the recommendations of the independent report in Autumn 2022 and set these out in its action plan. I have considered the updated action plan it shared in 2024.
31. I have not found the Council at fault for failing to comply with most of the recommendations set out and agreed to. In reaching my view, I was conscious the recommendations were largely for the Council to use best endeavours to correct its initial failure to properly conduct the restructuring of its Community Mental Health services. In doing so it:
• sought to identify previous service users to take account of their individual level of need and take appropriate action to ensure their needs were met. However, due to some service users not being known to the Council and the closure of the service due to COVID-19 prior to the restructuring, it was not possible to reach everyone or quantify how many may be impacted. It sought to advice anyone affected to contact their GP or the Council for support or an assessment of need, which was all it could do in the circumstances;
• completed a retrospective Equality Impact Assessment in late 2023. While I acknowledge Mr C’s view this was a tick-box exercise, it is clear any assessment after the restructuring process had started or been completed, was unlikely to be significantly useful as the impact would already have occurred. Any individual who may have experienced an injustice as a result, has the right to complain to the Council or take action in court for a breach of the Equality Act. In this case Mr C did not experience such impact himself;
• had worked with the organisation, which managed the hub, regarding data collection and how this data is shared with the Council to ensure it has service user data available in the future;
• shared and publicised information around access to services in its new Community Mental Health service. Including, individuals could self-refer or be referred by professionals and the thresholds for support;
• put in place learning from the recommendations, including how the Council engages with service users and other stakeholders to seek views and co-production of services; and
• put in place transitional arrangements for some service users, and a mediation offer regarding its complaints handling which was not taken up by the individual complainants.
32. However, the Council had planned for an update of its action plan to be shared in September 2023. The evidence shows the Council did not complete all the actions and share these with Mr C and other relevant individuals as it said it would. It was not until early 2024 it further updated the action plan, and a few months further before it shared the outcome with Mr C. This was fault.
33. In addition, while I accept the Council communicated with Mr C and other individuals including responding to his complaint. I found it did not provide enough information or updates about the progress with its action plan, including when it was taking longer than planned to complete the process. This was fault.

Council’s refusal to respond to further complaints from Mr C

34. The Council provided its complaints response to Mr C in late 2023. I understand the Council told Mr C the Ombudsman had confirmed we were satisfied with its action plan, and it remained in communication with service users. It also provided a response in March 2024 which confirmed it would not respond further to Mr C’s complaints or representations as it had already provided its response.
35. For clarity, the Ombudsman’s decision in our previous investigation was that we were satisfied with the Council’s actions up to the point of our investigation in September 2023. However, any new complaint brought after this should be responded to by the Council, which the Council did to Mr C.
36. The Council was entitled to tell Mr C it will not respond further to his complaints as it had already provided its response about the same matter. It was subsequently up to Mr C to decide whether to take further action following its response, such as bringing his complaint to the Ombudsman’s attention.
37. In addition, the evidence shows Mr C’s correspondence to the Council included some disagreement about the Council’s restructuring decisions and he shared information about other service users’ experiences. However, these are not parts I would expect the Council to respond to Mr C about through its complaints process. This is because some points had been part of the independent report investigation or were the Council’s decisions to make.
38. Also, any complaints made to the Council by, or on behalf of, other service users, who may have experienced an injustice due to the Council’s initial flawed restructuring, should be considered on their own merits. This could be cases where an individual has been left without support as identified in a Care and Support plan.

Public Sector Equality Duty and discrimination

39. The independent report found the Council had not properly considered its public sector equality duty and the recommendations sought to rectify this. The Council has since completed its action plan and Equality Impact Assessment which shows it has now had regard to this duty.
40. If Mr C, or other service users, believe the Council has discriminated against them through the restructuring of its Community Mental Health Services, he will need to bring such a matter to the attention of a court for its view. This is because only a court can determine whether there has been a breach of the Equality Act 2010.

Injustice

41. I found Mr C experienced some distress and uncertainty as a result of the Council’s delay in completing the steps set out in its action plan and how it communicated with Mr C about its progress. I understand Mr C did not experience a loss of support such as an assessed need in a Care and Support plan, and the closure of the hub was a result of its restructuring decisions and not the flaws in the process of doing so. An apology from the Council is therefore appropriate to acknowledge the injustice it caused him.
42. I have not made any service improvement recommendations as the independent report and the Council’s subsequent actions addressed the likely recommendations I would have made.

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Agreed action

43. To remedy the injustice the Council caused to Mr C, the Council should, within one month of the final decision:
1. write to Mr C and apologise for the distress and uncertainty he experienced as a result of the Council’s delays in completing its action plan and how it communicated with him about its progress.

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation with a finding of some fault by the Council which caused Mr C an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman