Summary: Mr X complained about the Council’s handling of his request for an Additional Restrictions Grant, causing him financial loss, distress and wasted time. We found fault in the Council’s communications causing injustice. We recommended the Council apologise to Mr X, consider a late grant application and take action to improve its services.

The complaint

1. Mr X complains the Council:
• Refused him an Additional Restrictions Grant in January 2021;
• Refused his request to apply for the grant orally as a reasonable adjustment;
• Failed to warn him of the closing date of the grant scheme.
2. Mr X says he missed out on financial support, felt belittled by the Council and wasted time in communications.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)

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How I considered this complaint

6. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
7. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered any comments before making a final decision.

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What I found

Reasonable adjustments

8. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody 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.
9. When the duty arises, 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.
10. The duty is ‘anticipatory’. This means councils 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, such as people who have a visual impairment, a hearing impairment, mobility impairment or a learning disability.
11. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.

Additional Restrictions Grant

12. The Government gave councils funding to support businesses impacted by COVID-19 restrictions under an Additional Restrictions Grant (ARG). Councils had wide discretion on which businesses to support and the eligibility criteria.
13. The Council introduced its ARG scheme in December 2020. It has provided a copy of its policy. This said applications would be available on the Council’s website and the Council would promote the scheme through its “communication platforms”.
14. Eligible businesses had to evidence a minimum of 30% loss in turnover from 1 September to 30 November 2020 compared to the same period in 2019 to qualify for a grant.
15. The policy did not specify a closing date for applications.
16. In April 2021 the Council expanded its scheme to include more businesses. It published an updated policy. This said the Council would not accept applications beyond 30 June 2021.
17. All businesses had to evidence a minimum of 30% loss in turnover from 1 September to 30 November 2020 compared to the same period in 2019, or another period agreed by the Council.
18. Small businesses operating from dwellings (such as Mr X) had to evidence a 30% drop in income by providing bank statements for Jan/Feb/March 2021 and comparable statements for the same period in 2020.

What happened

19. In January 2021 Mr X contacted the Council by email and asked what support may be available for his business.
20. The Council told Mr X about its ARG scheme, included a weblink to the policy and noted the key eligibility criteria of a 30% loss in income between specific dates.
21. Mr X sent the Council evidence of sales and said they were higher than the previous year due to a new product range. He explained he had dyspraxia and would need to apply orally as a reasonable adjustment.
22. The Council and Mr X spoke by phone. The Council does not have a record of the call but is confident staff would have asked if Mr X could evidence a 30% drop in sales.
23. The Council then emailed Mr X again. It explained he had to evidence a minimum of 30% loss in turnover from 1 September to 30 November 2020 compared to the same period in 2019. However, the information provided showed his sales were higher in 2020 compared to 2019. It understood he launched new products but it was unable to deviate from the policy, and all applications were judged against this fairly. He would not be eligible for the ARG grant and there would be no need to apply.  
24. Mr X asked to appeal this decision.
25. The Council said there was no right of appeal but it could carry out a review. The officer had asked a manager to review the decision and they were of the same opinion. They specifically required evidence between September and November and could not look outside of that scope.
26. Mr X asked if that window would change. The Council said it had no plans currently but would let him know.
27. In April 2021 the Council’s criteria changed as some businesses were asked for evidence over the period January to March 2021 compared to the same period in 2020. No-one contacted Mr X.
28. The ARG scheme closed in June 2021.
29. In July Mr X enquired about the ARG scheme and found it was closed. He emailed the Council unhappy that no-one had told him of the closing date. He said his sales were reduced this summer compared to last and had he known the scheme was due to close he would have applied on time. He said the Council knew he accessed information by email due to his disability [rather than via its website] and so the Council should have emailed him to warn of the closing date. He wanted to make a complaint of disability discrimination.
30. The Council said it did not have a mailing list for the grants, rather those who made enquiries were told to keep checking its website. At the time he contacted the Council in January it did not know the closing date for the scheme as the Government had not yet announced it. However, it passed his complaint to the relevant team to respond.
31. In its complaint response the Council outlined what had happened. It said Mr X asked about the ARG in January but he could not evidence the drop in income required. He did not formally apply but later made a further enquiry after the closing date. It could not follow up all enquiries due to the sheer volume received. If Mr X had evidence to support a valid application in January it would have helped him to formally apply online. As it was now aware he had issues with the online application process it would contact him in September once it had details of the next scheme.
32. Mr X complained further that the Council knew of his disabilities and so should have made reasonable adjustments. Someone should have contacted him.
33. The Council repeated its previous response. It found no evidence of discrimination and he could contact the Ombudsman if he remained unhappy.
34. Mr X then contacted the Ombudsman.
35. In response to enquiries the Council said:
• It did not refuse to make any reasonable adjustments to assist Mr X with making an application for ARG verbally.
• Had Mr X met the eligibility criteria or if he had requested he wished to proceed with an application despite his ineligibility, then it would have assisted him with completing an application.
• Mr X did not say he wished to be kept informed of any changes made to the ARG policy.
• It acknowledged that an officer implied he would keep Mr X advised of any change to the ARG policy. However, the 30% loss in income criteria did not change throughout the various versions/rounds of ARG.
• It used a variety of channels to communicate information about its schemes and the closing dates. This included: its website, social media, weekly bulletins from stakeholders and Council press releases.
• It enclosed evidence of three press releases issued to the media promoting the ARG scheme in November 2020, February 2021 and April 2021.
• It had also asked Mr X if he would like to be added to the Council’s mailing list (referred to as the Economic Bulletin) as a means of keeping in touch with Council matters but he had not yet agreed to this.

Findings

36. The Council should ensure people with a range of impairments can access its services. The Council appears to have promoted the ARG scheme and its closing date online only. However, I acknowledge general information about grants were available on TV and in published press. Further that people could contact the Council by phone or post for further information. Taking these points into account I consider the Council showed adequate regard to its duty to ensure its services were accessible.
37. In January 2021 the Council told Mr X he would not be eligible for the ARG. It gave this advice based on the information he provided and in line with its policy at the time. I do not find fault.
38. However, the Council should have responded to Mr X’s request to apply verbally. It should have made clear it could support him with an application if he wished to proceed, but it did not. This is fault causing Mr X some distress and uncertainty. The Council should apologise to Mr X and take action to prevent recurrence. Mr X may have applied formally if he was offered support to do so. However, it is likely the decision outcome would have been the same, given the Council’s policy at the time. I therefore consider no further remedy is due.
39. There is no evidence Mr X asked the Council to contact him directly once it knew the closing date of the scheme. And it was open to Mr X to contact the Council again by phone at any time to check this. However, the Council did say it would contact Mr X if the scheme’s evidence requirements changed and then did not do so. This is fault. I am satisfied Mr X missed the chance to apply for the revised April 2021 scheme as a result. I will make recommendations to address this injustice.
40. I recognise Mr X has spent time contacting the Council however this is not beyond the usual time and trouble arising through a complaints process. I find no further fault in the Council’s communications that would justify a further remedy.

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Agreed action

41. To remedy the injustice set out above I recommend the Council take the following actions:
42. Within one month:
• Provide Mr X with a written apology;
• Contact Mr X and support him to make a late application for an ARG under the April 2021 policy. Provide Mr X with a written decision and pay an amount equivalent to the grant if he would have been eligible at the time.
43. Within three months:
• Provide training or guidance to public facing staff to make them aware of the Ombudsman’s expectations; that the Council should provide a clear response to any request for a reasonable adjustment, (in writing where possible) and including reasons for any refusal.
44. The Council has accepted my recommendations.

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Final decision

45. I find fault in the Council’s communications with Mr X causing injustice. The Council has accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman