Summary: Mrs X complained the Council failed to give due regard to her disability during an appointment she held with it. We have concluded our investigation having made a finding of fault. Although the Council acknowledged the appointment held was not conducive of disclosures made by Mrs X, apologised and arranged appropriate training for its staff, this was not sufficient in remedying the injustice caused to Mrs X. The Council have agreed to our recommendations.

The complaint

1. Mrs X has an ASD diagnosis and complains the Council failed to give due regard to her disability during an appointment held at the Council’s premises. Mrs X says she felt uncomfortable during the appointment, and no reasonable adjustments were made to support her during the meeting. Mrs X says her mental health deteriorated as a result, leading to her isolating herself and unable to leave her home. The Council has apologised to Mrs X and arranged appropriate training for its staff, however, Mrs X would like the Council to provide a more meaningful remedy to acknowledge the distress caused.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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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How I considered this complaint

6. I spoke with Mrs X and considered the information she provided. I also considered the Council’s complaint responses to Mrs X. I offered Mrs X and the Council an opportunity to comment on my draft decision, and I considered their comments before making a final decision.

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What I found

Relevant legislation and guidance:

Reasonable adjustments for people with disabilities

7. 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.
8. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics (including disability) listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
9. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any public body. 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.
10. 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.
11. 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.

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What happened

12. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
13. In prior communications with the Council, Mrs X informed the Council she had recently received an ASD diagnosis.
14. Mrs X arranged and held an appointment with the Council to support her with completing a questionnaire.
15. When Mrs X attended the appointment, the meeting was held in what Mrs X describes as a small office with two Council officers.
16. Mrs X says at the meeting, the Council officers present challenged her on the eye contact she was making and that she was speaking quietly. Mrs X says she was made to feel uncomfortable at the meeting due to the door being open and the conversation being within earshot of people passing by.
17. Mrs X says the Council officers got noticeably frustrated with her, which left her upset. Mrs X says the Council officers did not support or comfort her. Mrs X asked the Council officers to end the meeting and leave.
18. When Mrs X left the appointment upset, she was comforted in the reception area by a member of staff working in reception.
19. Mrs X says the Council’s actions amounted to discrimination and harassment and caused a deterioration in her mental health leading to her isolating herself as she no longer wanted to leave her house. Following this, Mrs X complained to the Council.

Mrs X stage 1 complaint to the Council

20. Mrs X complained to the Council, detailing her experience as described above. Mrs X informed the Council she wanted staff to receive appropriate training on how better to work with people with an ASD. Mrs X also requested an apology from the Council.

The Council’s stage 1 response to Mrs X

21. The Council acknowledged it had awareness of Mrs X’s ASD diagnosis and acknowledged the environment with which the appointment was held was not in line with the disclosures Mrs X had made. The Council said Mrs X should have been offered a one-to-one appointment, in a private setting that was free from distraction and disruption.
22. The Council also acknowledged comments made by the Council officers in the meeting, informing Mrs X this should not have happened and apologised.
23. The Council informed Mrs X that it would consider the appropriateness of training on neurodiversity and customer care to ensure its staff were placed to assist all of its service users.

Mrs X stage 2 complaint to the Council

24. Unhappy with the Council’s response and seeking a further remedy to acknowledge the injustice she had suffered; Mrs X escalated her complaint to stage 2 of the Council’s complaint process.

The Council’s stage 2 response to Mrs X

25. The Council again apologised to Mrs X for her experience and informed Mrs X that staff will be receiving appropriate training, including revisiting management’s expectations in terms of standards, conduct and behaviours in line with Council’s policies.

Mrs X stage 3 complaint to the Council

26. Unhappy with the Council’s response and still seeking a further remedy to acknowledge the injustice she had suffered; Mrs X escalated her complaint to stage 3 of the Council’s complaint process.

The Council’s stage 3 response to Mrs X

27. The Council considered that its stage 3 review process would not serve to provide Mrs X with the outcome she sought, and concluded its consideration of Mrs X complaint. The Council signposted Mrs X to our service.

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Analysis

28. The Council has acknowledged that the appointment held with Mrs X was not carried out with consideration of the disclosures she had previously made to it. As the Council describes, the meeting should have taken place in an environment better suited to the needs of Mrs X and here I have made a finding of fault. This caused undue significant distress to Mrs X that could have otherwise been avoided, and this is the injustice.
29. The Council has undertaken staff training to ensure staff better understand the needs of its service users and have also made an apology to Mrs X.
30. Whilst our service commends the proactive approach of the Council to identity training for its staff, and offer Mrs X an apology for her experiences, I consider there is further scope for a remedy to acknowledge the injustice to Mrs X.

Discrimination and harassment

31. Mrs X also complains that the Council’s actions amounted to discrimination and harassment.
32. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. If Mrs X believes she has been discriminated against and harassed by the Council, she can make a claim in the County Court under the Equality Act 2010.

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Agreed action

33. As per our published guidance on remedies, we can make recommendations of a symbolic payment where we consider there is outstanding injustice. This includes distress, such as significant anxiety, frustration or upset. Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.
34. In assessing the distress caused to Mrs X, I have taken into consideration Mrs X’s personal circumstances, such as her ASD diagnosis, the severity of the distress caused by the Council’s actions as detailed in paragraph 17, and the length of time involved as detailed in the complaint. In my assessment of the facts of this complaint, I have arrived at a figure of £300.
35. To further remedy the injustice caused, the Council have agreed to:
1. Pay Mrs X an amount of £300, as a symbolic payment to acknowledge the distress caused by its actions.
36. The Council will complete action a within one month of the Ombudsman’s final decision.

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Final decision

I have concluded my investigation having made a finding of fault. Although the Council acknowledged the appointment held was not conducive of disclosures made by Mrs X, apologised and arranged appropriate training for its staff, this was not sufficient in remedying the injustice caused to Mrs X. The Council have agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman