Decision : Upheld
Decision date : 02 Dec 2021
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to have due regard to its Public Sector Equality Duty in the way it dealt with a complaint about rubbish in her yard. The Council was at fault. It failed to consider whether Mrs X required reasonable adjustments when she advised it of her disabilities. The Council has agreed to apologise to Mrs X, cancel the fixed penalty notice and to take no further action. It has also agreed to remind officers of the Public Sector Equality duty and the need to keep accurate records of contact.
- Mrs X complained the Council failed to have due regard to its Public Sector Equality Duty in the way it dealt with a complaint about rubbish in her yard. She says it failed to make reasonable adjustments when she requested them, and it failed to deal with her complaint properly. Mrs X would like an apology and support to deal with this issue.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered the information provided by Mrs X and discussed the complaint with her on the telephone. I considered the Council’s response to my enquiries.
- I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
- The Anti-Social Behaviour, Crime and Policing Act 2014 gives councils powers to issue community protection notices to prevent anti-social behaviour which is having a negative effect on the community’s quality of life, and which they decide is unreasonable. Community protection notices require the behaviour to stop and, where appropriate, require reasonable steps to be undertaken to ensure it is not repeated. Failure to comply with a community protection notice is an offence and may result in a fine or fixed penalty notice.
- Councils must issue a written warning in advance of a community protection notice. A community protection notice can be appealed in the Magistrates’ Court within 21 days by the recipient if they disagree with the council’s decision.
- The Equality Act 2010 brought together all previous equality legislation. Section 149 of the Equality Act created a new Public Sector Equality Duty. This includes a duty for public sector bodies to eliminate discrimination and advance equality of opportunity when carrying out their functions.
- The reasonable adjustment duty is set out in the Equality Act 2010. It applies to all bodies which carries out a public function. It aims to make sure a disabled person can use a service at, or as close as possible to, the standard usually offered to non-disabled people. When the duty arises, the body is 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 be made.
- In April 2021 the Council received a complaint there was a build-up of waste in Mrs X’s yard and household waste was overflowing from the bins.
- A council officer visited the property. The officer says Mrs X was abusive and slammed the door on them thus failing to engage with them at all. In their notes they recorded ‘female responded, very argumentative, details refused to be checked’. Mrs X says the officer was abrupt. She says she tried to explain she could not move the rubbish in the garden as it had animal excrement on it. Mrs X says she could not touch it due to her disabilities. She says the officer shouted it was her responsibility to keep it tidy. Mrs X says she got upset and closed the door.
- Mrs X submitted an on-line complaint to the Council the following week. She said ‘I am a vulnerable adult with autism and suffer with severe mental health’. She said she was ‘spoken to in an inappropriate manner to the point I had an emotional breakdown. I was laughed at, humiliated, shouted at and verbally shamed whilst people walked by. I suffer with social anxiety and as a result of this incident I am frightened to answer my own door. I need understanding and written advice on who to contact. I don’t process verbal communication as my working memory is poor. I need support not a public shaming and humiliation’.
- Six days later, the Council sent Mrs X a community protection warning notice. This set out the Council’s requirements which included for Mrs X to remove or arrange for the removal of the waste from the rear yard and arrange for its lawful disposal and to ensure waste receptacles were stored securely in the yard and not placed on the highway for collection any sooner than 8pm on the day before collection.
- In addition, the Council sent Mrs X a statutory notice setting out the how her household waste must be put out for collection so as to avoid causing a nuisance. It said ‘should you require any further information or have any queries regarding the enclosed written warning, please do not hesitate to contact me further’.
- Mrs X spoke to her GP who contacted the Council officer. The Council has no notes of the conversation. Mrs X says the officer advised Mrs X to get her children to clear the rubbish. Mrs X also contacted her MP who wrote to the Council.
- The Council responded to Mrs X’s complaint a week later. It decided the complaint was not upheld. It set out the Council’s stance against the accumulation of waste on properties. It said an officer visited Mrs X and ‘quite correctly tried to point out the issues with your household waste which are clearly unacceptable. The officer was unaware of your personal issues and tried to explain the matter to you but you abruptly closed the door ending the conversation. You should by now have received a letter and community protection warning informing you of your responsibilities in this matter and if the waste is removed from your property and you begin to use the bins correctly then you will have complied with the warning and no further action will be deemed necessary’.
- Mrs X sent a text to the Council officer who had visited her property asking to meet with them as a reasonable adjustment. In the text Mrs X said she was unable to make phone calls or fully understand the legal terms in the letter. She said she had misplaced the letter and asked that a copy be attached so accessible by email as a reasonable adjustment. The Council officer concerned says they cannot recall receiving the text. However, Mrs X received a copy of the letter by email although the rest of her request was not acknowledged.
- In June 2021 the Council wrote to Mrs X’s landlord to advise it was planning to serve a community protection notice. Three days later it sent Mrs X a community protection notice giving her 28 days to remove the rubbish. The community protection notice set out a right of appeal. Mrs X says she contacted the magistrates court but could not afford to pay the £60 fee. Mrs X says she was overwhelmed by it all.
- In mid-July the Council wrote to Mrs X and issued her with a fixed penalty notice for £100 as she had not cleared the yard. The letter said Mrs X may be subject to prosecution if she failed to pay.
- Mrs X emailed a complaint to the Council in July 2021 saying the Council had failed to make a reasonable adjustment. She explained she had Asperger’s and suffered significantly with her mental health. Mrs X wanted the Council to remove the soiled rubbish as a reasonable adjustment. She asked the Council to rescind the warning and fine as a reasonable adjustment. She asked the Council to respond within seven days and explain why it failed to make a reasonable adjustment. The Council did not respond to the email.
- The Council wrote to Mrs X’s MP in early August 2021. It set out its procedures and that it had explained to Mrs X her responsibilities.
- In mid August 2021 the Council wrote to Mrs X. It said if she did not pay the fine a file would be prepared and sent to the Council’s legal services for prosecution through the Magistrates’ Court.
- Mrs X says the yard has since been cleared. As I understand it, the yard was cleared by Mrs X’s landlord.
- Mrs X and the Council officer have different recollections of what happened when the officer visited her property. I was not present and so cannot determine exactly what occurred or what was said. When Mrs X contacted the Council a week after the visit, she made it clear she had disabilities which affected the way she responded when the officer visited. When the Council responded to Mrs X’s complaint it referred to her ‘personal circumstances’ but did not acknowledge or consider whether Mrs X had disabilities. The Council failed to properly consider whether it had a legal duty to make adjustments to the way it dealt with Mrs X. This was fault.
- When Mrs X received the community protection warning notice she texted the council officer who had visited her property. The officer says they cannot recall receiving the text. However, following this the Council sent Mrs X a copy of the notice by email as she had requested in the text. This suggests the text was received. In it, Mrs X requested a meeting as a reasonable adjustment. The officer failed to consider whether to make this adjustment and did not respond to her request. This was fault.
- Mrs X’s GP surgery contacted the Council on her behalf. The Council has no notes of what was discussed at this contact. This contact was directly relevant to Mrs X’s case and the failure to keep appropriate records was fault. In addition, the Council failed to acknowledge or respond to Mrs X’s emailed complaint of July 2021. This was fault.
- The Council was not expected to clear the yard for Mrs X. However, as part of its assessment process, I would have expected it to have considered what, if any, adjustments Mrs X needed to the way it responded to her, such as setting out clearly in writing the options available to support her in resolving the issue. The Council did not do this, and so the decision to issue the community protection warning notice and subsequent notices was flawed. I do not consider the issuing of a community protection warning notice was offering advice and assistance as requested by Mrs X.
- Within one month of the final decision the Council has agreed to:
- apologise to Mrs X for the distress caused by failing to consider whether she required reasonable adjustments in the way it dealt with her; and
- cancel the fixed penalty notice and takes no further action to pursue the matter.
- the need to keep appropriate records of contact with service users; and
- the Public Sector Equality Duty and their responsibility to consider whether to make reasonable adjustments if people with disabilities have problems using the service.
- I have completed my investigation. There was evidence of fault causing an injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman