Summary: Mr B complained about the way in which the Council has restricted his contact and failed to make any reasonable adjustments for his disability. We find the Council failed to properly respond to Mr B’s request for reasonable adjustments. This caused Mr B distress and frustration. The Council has now considered Mr B’s request, agreed to find and fund an advocate, and pay him £250.

The complaint

1. Mr B complains that Northamptonshire County Council (the Council), by imposing restrictions on his contact has failed to recognise his disabilities or offer any reasonable adjustments.

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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, section 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 the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Looked after children

6. A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority. Every looked after child must have an Independent Reviewing Officer (IRO): a qualified and experienced social worker whose role is to oversee how well the local authority does its job as a corporate parent. The IRO is there to ensure the authority is meeting the child’s needs and the child’s voice is being heard.
7. LAC review meetings oversee fulfilling the care plan and the child’s progress and decide any necessary changes.
8. Parents keep their parental responsibility even when a child is accommodated under a care order. They have a right to be told and consulted about all decisions, usually as part of a looked after child review.

Equality Act 2010

9. The Act applies to any organisation that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to the standard usually offered to non-disabled people. The duty is ‘anticipatory’. This means the public body cannot wait until a disabled person wants to use its services but must think in advance about what disabled people might reasonably need.
10. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable it must make them.
11. If a disabled person has a “substantial disadvantage” compared to a non-disabled person, the public body must consider the following:
• changing the way it does things;
• if it can remove barriers created by the physical features of a building, if the building is open to the public or a section of the public;
• if it can provide extra aids and services to help the disabled person access the service.

The Autism Act 2009

12. As well as the Equality Act the Council has duties under the Autism Act 2009, the Autism Strategy and statutory Government Guidance. The most recent guidance says:

Under the Equality Act 2010, all public sector organisations, including employers and providers of services, are required to make reasonable adjustments to services with the aim of ensuring they are accessible to disabled people, including people with autism…Without reasonable adjustments many services can be inaccessible for adults with autism. Putting in place reasonable adjustments can ensure that adults with autism are able to benefit fully from mainstream public services to live independently and healthily. For clarification, the reasonableness or otherwise of an adjustment depends on the consideration of how effective the change will be in assisting disabled people in general or a particular service user, whether it can actually be done, its cost, and the organisation’s resources and size.

Council’s unacceptable or unreasonable communications and behaviour policy

13. This policy says that unreasonably persistent and vexatious customers as those people who, because of the frequency or the nature of their contact with the Council, hinder its consideration of the issues they or other people raise. The description ‘unreasonably persistent’ or ‘vexatious’ may apply jointly or separately to the communication and/ or behaviour of a particular customer.
14. The policy gives examples of behaviour that places unreasonable demands on its staff, including:
• making unjustified complaints about officers who are trying to deal with the issues;
• covertly recording meetings or conversations without agreement of those involved;
• making serial complaints about various matters or continuing to raise the same or similar matters over and over again; and
• inundating the Council with emails, telephone calls, or copies of information that have already been submitted or that are irrelevant to the enquiry, request or complaint
15. The Council may apply the policy when the ‘business as usual’ management of behaviour has not been effective and a senior manager considers it is necessary to formally manage and/ or restrict contact or communication.
16. The Council says in cases where it has decided to apply the policy it will write to the person to detail why a decision has been made, the restricted contact arrangements and the length of time that these restrictions will be in place. It says it will review all cases every three months.

What happened

17. Mr B has an autistic spectrum disorder: he has a high intellect but finds concise communication, particularly in writing, difficult. He needs extra time to process information and compile a response.
18. He has been involved with the Council for a number of years due to his children being ‘looked after’. They are currently in a temporary foster placement with Mr B’s sister and brother-in-law in a different part of the country. Mr B and his ex-wife, Mrs C, have regular contact with the children. Mr B moved to the area to be near the children.
19. The Council carries out looked after children reviews every six months. The IRO had been in place since 2014.
20. The review report from December 2014 said:

The IRO was mindful of [Mr B’s] disability during chairing the review. The IRO had offered to meet separately with [Mr B] before the meeting. The IRO tried to keep to the agenda which had been emailed to [Mr B], had short breaks during the review, held meeting over 2 parts and ensured [Mr B] had time to process information which was presented. [Mr B's] request to record the meeting was declined.

LAC review January 2018

21. Prior to the LAC review in January 2018 Mr B met the children’s social worker the night before. At the meeting the IRO said Mr B had raised concerns about the stability of the placement with his sister, on the basis of problems she had discussed with him. He said he had taken legal advice and the placement was breaking down. His sister denied this was the case and said the placement was stable. This was supported by the IRO. Mr B felt ambushed and unable to discuss the matter properly. He said he had tried to discuss this issue on three occasions with the IRO prior to the meeting but without success. Mr B returned to this topic several times throughout the meeting.
22. The meeting discussed the work that had been done with Mrs C and the fact that the supervised contact sessions were improving.
23. The IRO explained that Mr B’s last contact session with the children had been supervised due to concerns about Mr B’s low mood and anxieties. Mr B felt this was not justified. The meeting discussed carrying out a piece of work with Mr B and the contact returning to unsupervised.
24. It also became apparent during the meeting that Mr B was recording it. He said he had the right to do so and had been advised of that by a government minister. The IRO said she had not given her permission for the meeting to be recorded and at the very least people should be asked for their permission. Mr B said it was only for his personal use so he could check back what had been said.
25. The social worker present also suggested that Mr B could benefit from having an advocate with him at these meetings and said she would make enquiries about this possibility. The meeting lasted approximately three hours.

LAC review July 2018

26. For the next review meeting in July 2018 Mr B privately funded an advocate to attend with him. He emailed the Council prior to the meeting to request funding for the advocate. He also had the permission of the IRO and the social worker to record the meeting. The IRO had arranged to meet the parties separately to reduce the stress of the previous meeting in January 2018. Mr B says this was imposed upon him.
27. Mr B was anxious about the meeting and in particular, interactions with the IRO. He perceived she was the cause of his stress because she did not properly understand his condition, his ex-wife’s condition nor the history of the case. He felt the IRO ‘needed educating’.
28. The social worker and the IRO raised concerns about the children’s anxieties about recent contact sessions with Mr B, saying he had been anxious and grumpy. Mr B felt unfairly accused and ambushed. He considered the problem was that he had not been treated the same as his ex-wife and his contact time had been unfairly reduced. He suggested separate contact time with the girls. The IRO tried to say that it was not about the type of activities or the interaction between the children, but it was about Mr B’s presentation, his anxieties and mood. Mr B denied the problem was about him, but rather saw the IRO and the meetings as the problem.
29. The IRO and the social worker referred to the possibility of getting funding for the advocate to attend future meetings.
30. The meeting lasted nearly two and a half hours.
31. During the meeting Mr B said he was considering making a complaint about the IRO to the professional body representing social workers (HCPC).

Issues following the meeting

32. The IRO says she was very upset by the meeting and on the way home had to pull off the road to compose herself. The Council said she and the social worker received clinical supervision to cope with the resulting stress. Mr B also says he was very upset by both meetings and the stress affected him for months afterwards.
33. Although the IRO had asked Mr B where he would like the next review to be held, she concluded it would be better for Mr B to be consulted by email and not attend the meetings in person.
34. Mr B made a complaint to the HCPC about the IRO (unfair treatment of Mr B and causing emotional harm to the children) and sent a copy to the Council shortly after the LAC review. The Council responded to this by letter saying it did not uphold any of the complaints made by Mr B against the IRO.

Single point of contact

35. After the meeting the Council sought advice on the possibility of implementing a single point of contact for communication with Mr B. An email between the staff involved and a senior officer from customer services and data protection, said:

You have advised me that Mr B’s contact and behaviour is unreasonable and the pressure this is putting on staff (both in terms of resource implication, and emotional strain) has become unacceptable. You have agreed to provide me with evidence of a) email communications in which Mr B has been unreasonable/ offensive/ difficult to manage and b) communication in which you have advised that these exchanges are not reasonable/ acceptable….

The first step is to advise Mr B of the fact that his contact has become unmanageable and to request that certain conditions are complied with (volume of communications, tone, language, single channel, single contact person etc). You should also share with him the above policy. This should be done in writing, with clear expectations and a contact route should he want to send in reasonable and appropriate enquiries about his children. The letter should also clearly explain what happens should Mr B not engage with the conditions set out by the authority.

36. The Council sent a letter to Mr B on 12 July 2018 saying that it found his communication and behaviour damaging to its attempts to work with him positively and that it was having a significant impact on officers’ wellbeing. It continued that this was due to the volume and tone of his communications and his behaviour towards staff during meetings.
37. It referred him to the Council’s policy on managing unacceptable or unreasonable communications and behaviour and asked him to adhere to the communication standards within the policy. Specifically, it requested that he only made contact when he had information to share or request specifically about the care of his children. It requested contact by email only and to accept that responses may not be immediate. It asked him to maintain a respectful and collaborative relationship with all staff and to abstain from making unfounded accusations and using derogatory language.
38. It warned that if his contact continued in the same manner it would consider implementing a single point of contact for his communication.
39. Mr B has provided a document headed ‘Human Rights Case’, detailing alleged disability discrimination by the Council against him. This document refers to the Council’s letter of 12 July 2018 and alleges it was sent in response to his request for reasonable adjustments.

Further communication

40. The social worker contacted Mr B in the autumn of 2018 with updates about the children’s wellbeing and progress and to confirm contact arrangements. Mr B sent a long email with several attachments in response, which included his concerns about the IRO.
41. In November 2018 the IRO contacted Mr B to obtain his view prior to the next LAC review meeting which was due in December 2018. She said she did not anticipate any major changes to the contact arrangements.
42. Mr B’s solicitor sent a letter to the Council in November 2018. It alleged that by restricting Mr B to written communication only, the Council was in breach of the Equality Act 2010. It said it had put Mr B at a disadvantage due to his difficulty putting his thoughts into writing in a concise manner. It requested the following reasonable adjustments:
• reinstatement of verbal communication by phone and attendance at meetings;
• permission for Mr B to record meetings via Dictaphone;
• permission to be accompanied by an advocacy support worker; and
• a meeting to produce an agreed list of difficulties and commitment to remove barriers so any new staff will be aware of how to handle Mr B’s disability.
43. In December 2018 Mr B sent a long email repeating his complaints against the IRO and setting out the points he wished to be included in the IRO’s review report. A senior manager circulated the email internally, expressing concern about the tone and content of Mr B’s email. He was concerned about the impact on staff and Mr B’s wellbeing. He recommended implementing a single point of contact and referring Mr B for advocacy support.
44. The Council then held a meeting to discuss how to implement a single point of contact for Mr B.
45. On 16 January 2019 the Council sent an email to Mr B explaining that it was implementing a single point of contact, restricting Mr B’s contact to email or written only, from a single email address with a maximum of two to three emails per day and clear labelling of the subject matter. The Council also sent a copy of the email to Mr B’s solicitor in response to the letter from November 2018 about reasonable adjustments. It said reasonable adjustments were not necessary as Mr B could discuss matters with his representative.
46. The single point of contact arrangement has remained in place since then. Mr B complained to the Ombudsman in March 2019.
47. In response to our enquiries the Council says the justification of the single point of contact was the volume and nature of the correspondence being sent by Mr B to a variety of officers. This correspondence generally bypassed formal procedure and was considered obstructive to the progression of the case and care planning and was not resolution-focussed. It also says the HCPC did not uphold Mr B’s complaint against the IRO.

Analysis

Reasonable adjustments

48. There is evidence that the Council considered making reasonable adjustments to assist Mr B’s participation in the LAC reviews in December 2014 by speaking to him separately beforehand, splitting the meeting into two parts and holding short breaks. There is no evidence Mr B was unhappy with these arrangements until the meeting in January 2018.
49. It is clear the relationship between Mr B and the Council (particularly the IRO) deteriorated after this meeting and that this coincided with changes to both his and Mrs C’s contact sessions. Mr B had not requested any reasonable adjustments, but the social worker did refer to the possibility of advocacy support to assist Mr B. There is no evidence this support was progressed at this point.
50. By July 2018 Mr B had sourced and funded his own advocacy support. He had also requested funding from the Council for this. The IRO had made some adjustments by arranging to meet all parties separately, allowing Mr B to record the meeting and extending the length of the meeting. The social worker and the IRO also made references to funding advocacy support for Mr B to assist him participate in the meetings.
51. There is no evidence that the Council responded to Mr B’s request for funding. This was fault. The Council had suggested in January and again in July that Mr B needed advocacy support for the meetings and it should have considered sourcing and funding this. The failure to do so was fault.
52. The Council did send a warning letter to Mr B at this time about his communication and behaviour, explaining why the Council considered it was unreasonable and that the next step would be a single point of contact.
53. The Council missed a second opportunity to properly respond to a request for reasonable adjustments in November 2018 when it received the letter from Mr B’s solicitor. This letter set out the Council’s duties under the Equality Act 2010 and made a clear request for four reasonable adjustments to be made to enable Mr B to participate in the LAC reviews. The Council did not respond to this request. This was fault.
54. Instead, over two months later, it informed Mr B and his solicitor that it was implementing a single point of contact and that reasonable adjustments were not required because Mr B could communicate through his solicitor. It was fault to treat the issues of reasonable adjustments and unreasonable communication together in this way. It meant the Council failed to give Mr B clear explanations as to why it was implementing the single point of contact and why it was not making any reasonable adjustments.
55. It was misleading to imply that no reasonable adjustments were necessary due to Mr B having a solicitor. He had requested adjustments to enable him to attend and participate in meetings. The Council should have considered the request and responded to him. This was even more necessary given that the senior manager in December 2018 again suggested advocacy support.

Injustice

56. The failure to respond properly to Mr B’s requests for reasonable adjustments caused Mr B distress and increased his sense that he is being unfairly treated.
57. However, I cannot conclude that this failure materially affected the outcome of the LAC reviews: Mr B attended the July 2018 meeting with an advocate (albeit funded himself), was allowed to record the meeting, and was given more time. But the process did not improve: his complaints against the IRO became very personal and were not upheld. Given the impact on its staff, the Council was entitled to take action to protect them from these situations.

Agreed action

58. In recognition of the injustice caused to Mr B, I asked the Council (within one month of the final decision) to:
• consider and respond to the request for reasonable adjustments made in the solicitor’s letter of 14 November 2018, giving reasons for accepting or refusing the request;
• review the terms and operation of the single point of contact;
• pay him £250 for the distress caused; and
• ensure all its staff are aware of, and have received training on, the public sector equality duty and the need to consider reasonable adjustments.
59. The Council has responded to the requests for reasonable adjustments in its comments on my draft decision.

reinstatement of verbal communication by phone and attendance at meetings

60. The Council does not consider this should be reinstated. It tried to meet with Mr B separately and then by telephone before the meetings, but this did not work. The negative impact on staff was significant and the Council had to arrange some clinical supervision sessions as a result. The Council has a concern that Mr B’s mental health does not allow this option to be considered at this point.
61. The SPOC is in place to support the team supporting Mr B’s children, including Mr B’s sister. The review meetings require complete focus on the children; while the Council is mindful of Mr B’s additional needs, The Council considers his presence in the meetings is detrimental to this requirement.
62. It will review the need for SPOC on a three-monthly basis.

permission for Mr B to record meetings via Dictaphone

63. The Council considers this is not necessary while the SPOC is in place. It sends minutes of the meetings to Mr B and proposes the use of an advocate to support him understand the meeting’s context and content.

permission to be accompanied by an advocacy support worker

64. The Council acknowledges that it should have sourced and funded an advocate to assist Mr B. But it also noted Mr B had an advocate at the most recent review meetings, but it did not have a material positive impact on his behaviour in the meeting.
65. The Council proposes to find an advocate to support Mr B to prepare for and go through any minutes from the review meetings (for two hours prior to and following each meeting). It is willing to fund this, but it will depend on Mr B’s consent, identification and approval.

a meeting to produce an agreed list of difficulties and commitment to remove barriers so any new staff will be aware of how to handle Mr B’s disability

66. The Council says that if new staff become involved in Mr B’s children’s cases, it agrees that an advocate could assist these workers to understand Mr B’s conditions and presentation. It has also provided staff with specific guidance regarding the requirement to make reasonable adjustments when a parent has a learning disability or difficulty.
67. The Council has also agreed to pay Mr B £250.

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Final decision

68. I consider this is a fair and reasonable way of resolving the complaint and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman