Summary: Mr X complained that the Council failed to safeguard him, did not assess his social care needs properly, and did not implement the reasonable adjustments he needed under the Equality Act. There was no fault in how the Council considered its safeguarding duties and how it assessed Mr X’s care needs. There was fault when the Council failed to implement Mr X’s reasonable adjustments and this caused Mr X distress and frustration. The Council has agreed to apologise to Mr X.

The complaint

1. Mr X complains that the Council failed to:
• take safeguarding action when he was distressed, sleeping rough and on hunger strike; and
• take account of his reasonable adjustments under the Equality Act.
2. Mr X says that the Council’s failings have caused him mental and physical pain causing his health to deteriorate significantly.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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

5. Mr X’s complaints span several years. 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. I have exercised discretion to consider the Council’s actions from January 2022. It has taken some time for Mr X’s complaints to reach the Ombudsman. He is very vulnerable and has been severely impacted by his housing situation and his wider circumstances. In addition, it took me some time to identify that matters he had brought to us earlier where in fact premature and so we had to ask him to make the complaints to the Council first. Further, Mr X also believed that he would be able to settle matters with the Council and he would not have to pursue these further. This also meant that he delayed bringing his complaints back to the Ombudsman.
7. The investigation period runs from January 2022 to February 2024 when Mr X moved out of the Council’s area.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The law and guidance

Safeguarding

10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
11. The Council has overall responsibility for coordinating safeguarding adults arrangement in its area. Its local procedures say that they must make or arrange an enquiry if a person has care and support needs; they may be experiencing abuse or neglect; and they are unable to protect themselves from this because of their needs. The Council should decide which organisation should lead on the enquiry, and it should have oversight of how enquiries are carried out, the decision making and the conclusion. This reflects the law and national guidance.
12. Where the situation has not met this threshold, the Council may make proportionate enquiries to promote the person’s wellbeing.

The Equality Act

The Equality Act

13. 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.
14. 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 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.
15. 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.
16. 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.
17. 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.

What happened

18. At the time of the events I have investigated, Mr X was moving from one Council flat to another. Mr X has a number of disabilities and physical and mental health conditions. Mr X is also autistic. He is hypersensitive to noise and this has a severe impact on him.
19. In January 2022, the Council agreed to move Mr X as he had complained that his neighbours and people outside were making excessive noise and this was making him very ill. Mr X became very distressed while he was waiting for the new flat. He felt he had to sleep rough and go on a dehydration strike (where he takes no fluids). He did this three times in January. Mr X was so distressed he felt that he may have to go into psychiatric care.
20. The Council considered whether it should take safeguarding action. The Council decided that Mr X did not reach the threshold for this because there was no risk of abuse or neglect and his concerns were about his housing. The Council also said that Mr X had told it he was fully independent and so he did not have social care needs. As such, the Council concluded that there was no role for adult social care nor safeguarding at that stage.
21. Mr X moved to the new flat in April 2022. He found it was not suitable due to its construction and noise from his neighbours. Mr X asked the Council to do more work to the flat or to move him from it. We have investigated Mr X’s complaints about his housing separately.
22. As part of an earlier Ombudsman investigation, the Council agreed to complete an assessment of Mr X’s social care needs, and following this, an OT assessment of how to meet his housing needs.
23. The Council visited Mr X at home to complete the social care assessment in February 2023. The assessment says that the key area in which Mr X might need support was in maintaining a habitable home due to his physical heath, and this seemed to be compounded by his sensory issues and the suitability of the flat. The Council agreed that Mr X would also have difficulty maintaining a habitable home due to his physical health conditions. The Council acknowledged that Mr X may have difficulty with other issues but concluded that he was able to achieve these social care outcomes without support.
24. Overall, the Council concluded that Mr X did not meet the eligibility criteria for care and support services. The assessment recommended that Mr X meet his needs by exploring a cleaning service (arranged and paid for by him privately), support with healthy living and money management, and by exploring therapy. The Council referred Mr X to the sensory team to see what may help him deal with his sensory problems. The sensory team however, said that Mr X’s issues did not fall within its remit, and he should deal with this issue via therapy, his GP, and other health provision.
25. Mr X continued to deal with the Council but in May 2023, when he felt matters were not being resolved, he became very distressed. Mr X went to hospital seeking psychiatric treatment. The hospital said it would arrange community support for Mr X at home rather than admit him to psychiatric care.
26. Mr X again became very distressed. He went back to the hospital and stayed there for six days awaiting assessment. Mr X told the Council that the stress he was under had driven him to dangerous thoughts. The Council made a safeguarding referral and the Council’s safeguarding team decided to refer the matter to the Mental Health social care team to follow up.
27. The Council twice telephoned Mr X to let him know it would refer him to its mental health team. Mr X says that this caused him distress because he had already had bad experiences with this team. He was also distressed because he had already requested the Council only contact him in writing (by email or letter) and not by telephone due to his disabilities. These were agreed reasonable adjustments under the Equality Act.
28. Mr X became very distressed by his contact with the Council and he went from the hospital to the town hall to start a hunger strike. A Council officer convinced Mr X to return to the hospital which then discharged him. However, Mr X felt unable to go home so he slept rough for three nights until the impact on his physical disabilities and mental health forced him to return to his flat. The Council officer became Mr X’s main point of contact and they exchanged many emails with Mr X regarding his housing situation and his complaints.
29. Mr X had also contacted a charity for help and had told it how distressed the housing situation was making him. At the start of June 2023, the charity made a safeguarding referral to the Council. The Council’s case notes show that it considered the referral. However it decided that it was not within social care’s remit because it was housing related, and it had recently assessed Mr X’s social care needs and considered the same issues. The Council passed the referral to its housing team as the key issue was for him to be moved. The Council also understood that Mr X had a mental health support worker and was not at that time in hospital.
30. In May 2023, Mr X complained to the Council that it had failed to safeguard him, and had not implemented reasonable adjustments. Mr X also complained about how the Council handled his housing situation. This included how it had handled a referral to an occupational therapist and adaptations to his flat. Mr X also complained that the Council had failed to refer him to an independent advocate.
31. The Council acknowledged Mr X’s complaint and said it would respond by 23 May or let him know if it would take longer. Mr X chased the Council for a response on 1, 5, and 21 June.
32. The Council sent Mr X a final response to his complaint on 7 July. It said that the Ombudsman had already investigated a failure to implement reasonable adjustments. It addressed his complaint about the referral to an occupational therapist to make sure his housing needs were met (which we have looked at separately). It said that it had followed the safeguarding processes and decided that his issue was around housing, he was not eligible for social care, and safeguarding action would not be appropriate. The Council acknowledged that it did not refer him to an independent advocate. It apologised and offered to do this.
33. Following his complaint, Mr X agreed with the Council that he would not pursue matters if it gave him a proper plan for moving and it paid him some compensation. This agreement eventually fell through and so Mr X pursued matters again with the Council in April 2024. The Council referred Mr X to the Ombudsman.
34. In the meantime, Mr X had moved from the Council’s area.

Was there fault by the Council causing an injustice to Mr X?

35. Mr X was clearly suffering significant distress and, at the time of these events, had ongoing difficulties with his housing. In this investigation, I have made findings about the actions of the Council’s Adult Social Care Service. We have investigated the Council’s Housing Service separately.
36. Mr X had times in 2022 and 2023 when he was presenting with a mental health crisis, and times when he was so distressed that he resorted to sleeping rough and hunger/ dehydrations protests. At each time, the Council considered whether it needed to take safeguarding action.
37. There was no fault in how the Council handled this. Although, these were intense periods for Mr X, the Council’s notes show that it properly considered whether it should start a safeguarding enquiry. It was open to the Council to decide that it did not need to do so because Mr X did not have any social care needs and because his issue was primarily that he needed to move house.
38. The Council considered what action it should take to promote Mr X’s wellbeing, and although I appreciate that Mr X was very distressed, it was not fault when the Council it decided that it could best manage his wellbeing by resolving his housing issues, and by referring him to the mental health team that already had some knowledge of his situation.
39. The Council agreed that it should have referred Mr X to an advocate. It apologised and offered to do this. This was an appropriate remedy to Mr X’s complaint about this at the time. However, Mr X then moved out of the Council’s area and so it was no longer appropriate for it to refer him to an advocate.
40. Mr X is clear that his disabilities and long-term health conditions means that he needs reasonable adjustments to use the service. This included that the Council communicate with him via email and not telephone because his disabilities mean he can become fatigued and overwhelmed by telephone calls. The Council’s adult social care team had agreed this. It was fault when the Council telephoned Mr X in response to a safeguarding concern. As such it failed to take into account its duties under the Equality Act.

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Action

41. The Council will within one month of the date of this decision:
• Apologise to Mr X that it failed to implement the agreed reasonable adjustments. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman