Summary: We have discontinued our investigation of Mr X’s complaint because he has commenced legal proceedings against the Council about some of the matters raised in his complaint to us, and some other matters are referenced in those legal proceedings.

The complaint

1. The complainant, whom I shall call Mr X, has disabilities which affect his physical and mental health. He is an ambulatory wheelchair user.
2. He complained that the Council has failed since June 2021 to properly assess and meet his housing and social care needs. As a result, he was placed in unsuitable interim accommodation in a hostel and then moved to unsuitable self-contained temporary accommodation. He could use the bathing facilities in the accommodation and the kitchen was not wheelchair accessible. His care needs are not being met and this caused a serious deterioration in his health and wellbeing.
3. Mr X also complained that the Council did not consider his request for a review of his priority band on the Housing Register when he was in Band 2 because he could not make the request in writing. He says he cannot bid for properties advertised on the Homeseekers website because he cannot use the online bidding system.
4. Due to his disabilities, Mr X asked the Council to make reasonable adjustments because he cannot complete forms or communicate by email or telephone without assistance. He complains that the Council did not record his need for reasonable adjustments in his case records. He further complains that its policy requiring housing applicants to complete forms online and communicate in writing puts him and many other people with disabilities at a substantial disadvantage.

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The Ombudsman’s role and powers

5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. Where a complainant has exercised his right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction. This applies even if the proceedings may not provide, or have provided, a complete remedy for all the injustice claimed. 
7. There may be cases where an element of the complaint is separable and may be distinguished from the matter pursued in the legal proceedings. But the Ombudsman must be cautious not to decide matters which will, directly or indirectly, be adjudicated on by a judge.
8. Our published Guidance on Jurisdiction says we must exercise extra caution in cases where the litigation is proceeding and has not been finalised. In such cases it may be difficult to know whether any part of a complaint can be separated until the litigation is finalised. 

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How I considered this complaint

9. I have spoken to Mr X and his representative. I considered the information and documents he provided and some records and correspondence provided by the Council.
10. Mr X provided a copy of the Particulars of Claim for the legal proceedings he has brought against the Council and the Council’s Defence. I also considered written advice from our solicitors about whether these proceedings affect the Ombudsman’s jurisdiction to investigate all, or part, of his complaint.
11. Mr X, his representative and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision
     

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What I found

12. This decision statement deliberately gives a very brief overview of the subject of the complaint. It does not go into detail about what happened because I have not made a finding about whether the Council was at fault. The purpose of this statement is to give a concise explanation of why we propose to discontinue (end) the investigation and the relevant information we considered.
13. Mr X commenced legal proceedings against the Council in the County Court. His solicitor issued a claim of disability discrimination under the provisions of section 29 of the Equality Act 2010 on the grounds that it had failed to make reasonable adjustments. At the time of writing, the legal proceedings have been stayed to give both parties a time to try to reach a settlement.
14. I discussed the complaint with Mr X and then wrote to explain the scope of the investigation. I did not intend to investigate the Council’s general policy on making reasonable adjustments. I also considered a point he had raised about the Council’s failure to record his reasonable adjustments in its case records. In my view, this was closely linked to the matters raised in his legal proceedings because it is connected to the failure to make reasonable adjustments.
15. Mr X then provided a copy of the Particulars of Claim for the legal proceedings against the Council. It gives several examples of the Council’s alleged failure to make reasonable adjustments including:
• Requiring applicants to have a Care Plan from Adult Social Care before it accepts they are vulnerable and have social care needs and refusing to accept a NHS Care Plan instead;
• Corresponding by email or letter when, due to Mr X’s disability, he has considerable difficulty dealing with written correspondence without assistance from others;
• Requiring forms to be completed manually or online when Mr X’s disability means he has considerable difficulty completing forms without assistance;
• Requiring applicants with a Personalised Housing Plan to search and apply for private rented properties online when Mr X’s disability means he has considerable difficulty using online systems without assistance;
• Placing Mr X in Band 2A on the Housing Register because he was homeless which disadvantaged him because he could not access properties that were suitable for his disabilities;
• Requiring a request for a review of a decision to be made in writing when Mr X has considerable difficulty in completing written correspondence without assistance;
• Requiring complaints to be made in writing when Mr X’s disability means he has considerable difficulty with written correspondence.
16. Mr X is seeking damages for the physical and mental distress caused by the Council’s alleged discriminatory conduct. He says the Council’s conduct exacerbated his physical and psychological symptoms. The claim also referred to the impact of being housed for so long in unsuitable accommodation.
17. Many of the issues in Mr X’s complaint to the Ombudsman overlap with matters that have been raised in his legal proceedings against the Council. This includes:
• general policy on making reasonable adjustments; and
• failure to record reasonable adjustments in Mr X’s case records.
18. Both these matters were directly raised in the legal proceedings Mr X has brought against the Council or they are inextricably linked to those proceedings.
19. We also find that other aspects of the complaint strayed into matters which were referenced in the legal proceedings, namely:
• substantive issues about the way the Council handled his request for homelessness assistance;
• the impact of placing him in unsuitable interim and temporary accommodation; and
• the priority band awarded to his Housing Register application.
20. Some other matters, such as the Council’s criteria for allocating wheelchair accessible accommodation and assistance to enable Mr X to bid for properties on the choice-based lettings scheme, were briefly referenced in the Particulars of Claim and the Council’s Defence. Until the legal proceedings are concluded, it would be difficult to assess how central these points will be to the Court’s consideration of the claim.
21. We have decided we must discontinue the investigation and wait until the Court proceedings are concluded to decide if there are any residual elements of the complaint we should investigate. We are therefore using our general discretion under section 24A(6) of the Local Government Act 1974 to discontinue the investigation. Mr X can ask us to review the case at a later date to decide if there are elements of the complaint that were not considered in the legal proceedings which we should investigate.

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Final decision

22. I have discontinued the investigation because the matters raised in this complaint are the subject of, or closely linked to, Mr X’s legal proceedings against the Council.

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Investigator's decision on behalf of the Ombudsman