Summary: Mr P complains about the Council not making reasonable adjustments he needs in his contact with it, due to his disability. The Ombudsman’s decision upholds the complaint. We have agreed remedies.

The complaint

1. The complainant, whom I shall refer to as Mr P, complains the Council is not making adjustments that would allow him to access services, particularly to make complaints, and contact Adult Social Care and Healthwatch.
2. He also complains:
• he has been blocked from making complaints to the Council;
• he has tried to meet the Council’s CEO, but this was refused;
• the Council has referred him to an advice agency as a point of contact. But that agency will also not meet his requested needs; defeating the point of the referral.

Back to top

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. 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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr P and his representative;
• made enquiries of the Council and considered its response;
• spoken to Mr P;
• sent my draft decision to Mr P’s representative and the Council and considered their responses.

Back to top

What I found

Legal and administrative background

Reasonable adjustments

6. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more ‘protected characteristics’. Protected characteristics include people with disabilities.
7. 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.
8. To make sure that a disabled person can use the service as far as is reasonable to the same standard as a non-disabled person, the service provider must make adjustments. If the adjustments are reasonable it must make them.
9. Government guidance on the Autism Act says:

‘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’. (Statutory guidance for Local Authorities and NHS organisations to support implementation of the Adult Autism Strategy March 2015)

What happened

Background

10. Mr P says he has had longstanding issues in accessing Council services. In particular, he cites problems making complaints, because the Council will not make the adjustments he needs, because of his disabilities.
11. In October 2016 we decided an earlier complaint from Mr P. He had complained the Council would not allow him to make a complaint in the way he wanted. He wanted to meet a named female officer alone. The Council had refused this request, but offered alternatives.
12. Our decision noted Mr P had not told the Council of any disabilities. But, even if he had, the Council had a responsibility to its staff. Our view was the Council had offered Mr P several ways to make his complaint. We did not uphold the complaint.
13. Mr P says he did not receive a copy of this decision. But the records of an advice organisation which was representing Mr P, show it did receive a copy of the decision.

The current complaint

14. The information the Council has sent me shows that, from August 2018, Mr P met the Leader of the Council 10 times. The Leader contacted advice organisations asking them to support Mr P, including in an Employment Tribunal issue. The Leader also contacted a NHS Clinical Commissioning Group (CCG) asking it to respond to Mr P’s contact to it.
15. In November 2018 the CCG responded to a complaint from Mr P. It noted his complaint was he felt discriminated against, due to his disability which affected his ability to communicate. The CCG’s response set out how it had tried to help Mr P’s access to it. It signposted him to the Health Service Ombudsman. It later emailed the Health Service Ombudsman, advising what organisations it had contacted, seeking support for Mr P. It noted advocacy and support agencies Mr P would not work with, for various reasons. These included organisations working with people with autism. The Council has a copy of these records in its files.

Mr P’s complaints to the Council

16. In early December 2018, the Council responded to a complaint from Mr P, about a member of its reception staff. It did not uphold the complaint. The Leader tried to refer Mr P to an advice organisation in a different city. That organisation advised it could not take clients from Portsmouth. The Council has sent a chronology that includes that referral as taken in response to the December complaint.
17. Later in December, another advice organisation the Leader had contacted, advised the Council Mr P needed to put in writing what help he needed. Mr P says he cannot do this because of his disability.
18. An internal Council email around this time noted Mr P was visiting Council offices and waiting in reception almost every day. It noted this was tying up officer time. It asked the Leader to contact Mr P about his contacts. The Council has not sent me any records of a response, or further action, following this request.
19. In January 2019 the Council responded to a complaint from Mr P: that it had ignored a request for him to meet its Chief Executive. The response noted Mr P had not advised why he wanted to meet the Chief Executive. Its view was it had not ignored his request. Rather officers’ belief was his meeting the Leader of the Council, and the Leader’s actions, had resolved the issue.
20. Later in January and into February, the Leader’s office was in contact with an advice organisation about arranging a meeting to support Mr P.
21. In February, Mr P made a complaint about how library staff had dealt with him when he visited and tried to meet staff from an advice organisation that has offices in the library. A senior officer, who had responsibility for libraries, responded. She apologised for any misunderstanding by library staff about Mr P’s visit. Mr P was not happy with this response and asked to escalate his complaint.
22. Later a more senior manager emailed Mr P, after he had visited the Council’s offices about this complaint. She advised she would be happy to meet him and discuss any matters he would like to raise, or to read any of the correspondence he had received.

Mr P’s complaint to the Ombudsman

23. In December 2018, Mr P complained to the Ombudsman, advising he still could not access services. In particular, he would like the support of Healthwatch, a Council funded organisation, to help him make a complaint against the NHS.
24. We first contacted the Ombudsman’s agreed contact at the Council. She advised Mr P had not mentioned to the Council any disability or need for a reasonable adjustment. She advised he was in almost daily contact with the Council.
25. We spoke to Mr P. He advised us he has autism, which makes it impossible for him to put complaints in writing. He advised he cannot deal with meeting more than one person at a time, as he finds this intimidating.
26. A representative who started working with Mr P advised us that Mr P had said he had asked:

‘repeatedly for Portsmouth City Council to make the reasonable adjustment of permitting him to meet in person with one individual to discuss his complaint, but this adjustment has not been made, either historically, or at this current time.

As a result of Portsmouth City Council’s refusal to make this reasonable adjustment, Mr [P] is unable to escalate his issue to stage 2, as he is unable to discuss his complaint with one individual member of their staff to do so.’

The Council disputes this claim.

27. In response to my enquiries, the Council advised:
• Its Adult Social Care team had had no involvement with Mr P in the time since December 2017.
• It could not find any evidence of Mr P saying, before a complaint he made in April 2019, that his request for individual meetings was due to a disability.
• The Council had offered Mr P an adult social care assessment, but he had refused. As there was no suggestion Mr P lacked the mental capacity to make that decision, it had not taken any further action about this. The Council did not provide any records to show when it had offered Mr P an adult social care assessment.
• Mr P’s meetings with the Leader of the Council were not part of any wider, co-ordinated, action plan with other parts of the Council.
• It did not have any policy on reasonable adjustments.

Was there fault by the Council?

28. Mr P has sought, over several years, for the Council to communicate with him in particular ways. Our earlier decision was that the Council had made efforts to accommodate Mr P’s contact. But that this was not due to any request by him for a reasonable adjustment.
29. With Mr P’s current complaint, it is evident Mr P has been seeking specific forms of contact. The Council says Mr P had only recently noted he needed these types of contact due to his disability.
30. The Council’s records show it has made efforts to meet Mr P, including, for example, contact with senior officers and the Leader. But it has no records the contacts and meetings were due to any awareness of its duties under the Equalities Act. There is no record of any officer checking this. Failure to do (and record) this was fault.
31. That is especially the case when, as here, the Council had information in its records (the CCG information) that gave some indication Mr P considered himself a disabled service user.
32. The Council advises it does not have any policy or procedure on reasonable adjustments. My view is it needs one. Without an organisational view, officers have no guidelines on what they should do to make services accessible for people with disabilities, including hidden disabilities. The lack of such policies may have contributed to the Council’s failure to ask Mr P about reasonable adjustments or to consider his requests for adjustments in a way that had explicit regard for the Equality Act’s requirements.

Did the fault cause an injustice?

33. From the evidence I have seen, the Council has used significant amounts of officer time and other resources dealing with Mr P’s contacts. Individual senior officers have met, or offered to meet, him.
34. But, the problem is, that without discussing with Mr P whether he needed any adjustments due to his disability, the Council could not consider if there was anything more it should reasonably have been doing to proactively help his access. This creates uncertainty.

Agreed action

35. I recommend that, within a month of my final decision, the Council contacts Mr P to specifically discuss with him any adjustments he requests because of his disabilities. It is then for the Council to decide if Mr P’s requests are reasonable. It needs to keep a record of these contacts and decisions and share them with the Ombudsman.
36. I also recommend that, within three months of my final decision, the Council develops a (Council wide) policy on how to check with service users whether they need any reasonable adjustments, because of a disability, to allow access to a service.
37. It is for the Council to decide the extent of that policy. But it should ensure it complies with the requirements of the Equality Act and its Code of Practice; for example that the duty is anticipatory. I also recommend the Policy should outline:
• when officers should ask about adjustments;
• when the Council does agree an adjustment, it needs to keep a record of what has been agreed, or why it has not agreed to a request.

The Council should send the Ombudsman a copy of its policy.

38. The Council has agreed to my recommendations.

Back to top

Final decision

39. I uphold the complaint and I have now completed my investigation.

Back to top

Parts of the complaint that I did not investigate

40. Mr P has complained to the Ombudsman before about the Council’s arrangements for meeting him. I cannot look again at those issues as we have already made a decision. Mr P says he did not get the decision. And the Council should also have made reasonable adjustments in relation to the issues in that complaint.
41. But an advice organisation that was helping Mr P does have a record of receiving the final decision statement. The time to challenge that decision was then. We no longer have the records of the evidence we considered. So my view remains that we cannot revisit that decision.

Back to top

Investigator's decision on behalf of the Ombudsman