Summary: Mr D complains the Council’s policy on land charges searches discriminates against disabled people. There was fault in complaint handling for which the Council should apologise. I have found no evidence of fault in the other parts of Mr D’s complaint.

The complaint

1. Mr D complains the Council’s policy on land charges searches discriminates against disabled people by imposing a financial penalty. He says he cannot attend the Council’s offices in person to carry out a free personal search as it is not safe due to the risk of COVID-19 and it is not suitable due to his psychological disability. As a result, he has to pay.
2. He also complains the Council failed to provide information in response to his environmental information regulations (EIR) request and did not put his complaint to Stage 2 of its complaints’ procedure.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. 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

8. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
9. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Local land charges searches

10. Local land charges are financial charges or restrictions on the use of land, such as:
• planning permissions and agreements
• environmental health notices
• listed building charges
• tree preservation orders
• plans for new roads.
11. Councils have a duty to keep a register of local land charges for their area. A search of the register forms part of the conveyancing process when a person is buying a property. There are two parts of the search:
1. The first part – the “LLC1 form” - reveals the charges registered against the property, for example conditional planning permissions, smoke control orders and tree preservation orders. These charges are binding on successive owners of the property or land.
2. The second part – the “CON29 form” - provides other relevant information which is held by the council, such as local plan information, nearby road schemes and planning notices etc.
12. Requests for a local land charges search are normally made by a solicitors or licensed conveyancer acting on behalf of the purchaser of a property. Some people pay personal search companies to undertake property searches on their behalf.
13. Councils carry out these searches (known as a “full official property search”) for a fee and guarantee the replies are accurate and comprehensive.
14. Councils also offer a “personal search” option, which enables a person (or a personal search company) to inspect the local land charges register for free. This provides information similar to that on an LLC1 form, but its accuracy is not guaranteed by the council. The person may also ask the Council for the information needed to complete the CON29 form.
15. Tower Hamlets policy on personal searches is to provide workspaces in one of its buildings to enable access to the property search browsers free of charge. This has been the practice since 2016.

Environmental information regulations

16. The Environmental Information Regulations 2004 (EIR) provide public access to environmental information held by public authorities. Most of the information used to answer land charge searches is likely to be environmental information as defined by the EIR. Provision of the information is usually free.

Reasonable adjustments

17. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. The Act includes a duty for public sector bodies to make reasonable adjustments for people with disabilities. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
18. It is not the role of the Ombudsman to decide whether requests for adjustments are reasonable, but we can look at how the Council considered and acted on the requests.
19. A council must also be able to show how it had due regard to the impact of its policies and services on people with protected characteristics. One way of showing due regard is to carry out an equality impact assessment, but this is not a legal requirement.
20. If a person believes they have been discriminated against because of the actions of a council, they may make a claim for damages in county court. Only the courts can decide whether a council has discriminated against a person. But the Ombudsman can decide if the council has acted with fault in dealing with a person's requests for reasonable adjustments. We must also consider if it is reasonable for a person to go to court. If we consider it is not, we may investigate.

Covid secure workplaces

21. In May 2020 the Government started to ease the national COVID-19 lockdown and encourage people to return to the workplace where possible. It set out measures to assist employers to make their workplaces “COVID-19 secure”. These included:
• Carrying out a COVID-19 risk assessment.
• Maintaining two metres social distancing wherever possible. For example, designating a one-way system; limiting the number of people allowed in confined spaces; and restricting the use of communal areas.
• Reducing the number of face-to-face interactions where people cannot be 2 metres apart.
• Cleaning workplaces more frequently than usual, focusing on high touch points, ensuring access to hygiene facilities, providing anti-bacterial wipes for equipment and disposing of waste frequently.

What happened

22. I have summarised the key events; this is not meant to show all the correspondence between Mr D and the Council.
23. Mr D works for a personal search company. He is autistic and has health conditions. He told me that prior to March 2020 he was attending the Council’s office to carry out the searches, although this was challenging for him.
24. Following the first national coronavirus lockdown in March 2020, the Council decided to carry out the free personal searches for people, as they were unable to attend the Council’s offices.
25. As the lockdown eased, the Government said that from 1 August 2020 employers could ask staff to return to the office. Workplaces that were re-opening had to follow the Covid-secure guidance. The Council therefore carried out a return-to-work building risk assessment in September 2020 to enable it to re-introduce the free personal search service as before.
26. This risk assessment set out measures to reduce the risk of transmission of the coronavirus. These included:
• Reducing the number of workspaces available from three to one.
• Reducing bookings to one search company in the morning and one in the afternoon.
• Cleaning and sanitising the workspaces after each appointment.
27. The Council approved the risk assessment on 20 October and decided to re-open its office from 9 November 2020 to enable people to carry out their own personal searches.

Mr D’s complaints

28. Mr D complained to the Council about this decision. He was concerned the Council was unable to guarantee the measures would prevent infection with COVID-19, in particular for people who were immunocompromised or who cared for a person who was immunocompromised.
29. He also complained the Council could not provide any information on the levels of contamination found on their equipment or confirm if their cleaning methods had been subject to laboratory analysis.
30. Mr D said as a result the Council was discriminating against individuals with disabilities, who may be at increased risk from the virus, and placing members of the public at risk. He said if a person had to self-isolate because of visiting the Council’s office, the Council should compensate that person.
31. The Council said, instead of visiting the office, Mr D could either pay the Council to carry out a full official property search or submit an EIR request to obtain the information for free.
32. Mr D made a further complaint that a person with a disability was being forced either to pay or to put their health at risk by attending the Council’s office. He said this directly discriminated against disabled people in violation of the Equality Act 2010.
33. The Council replied to both Mr D’s complaints on 4 December 2020. It said:
• Its interim measure of carrying out the personal searches for free had been disproportionately impacting Council resources.
• It had carried out a risk assessment and put measures in place to adhere to the Government’s guidance and ensure the space was Covid secure.
• The Government’s guidance did not require the Council to provide levels of contamination or carry out microbiological testing. It gave Mr D an example of its cleaning inspections.
• As the workspace was as Covid-secure as possible, the Council was not discriminating against disabled people. The Council did not charge for the official property search based on an individual’s physical health or any other protected characteristic.
• The Council did not force any individual to attend its office. It had offered alternative arrangements via the EIR or via the Council’s 'Official Search' service.
• The Council considered that carrying out the free personal searches itself for people with disabilities would be deemed a fundamental alteration of the nature of its service, and therefore not a reasonable adjustment required by the Equality Act.
• It had not carried out a formal equality impact assessment on the re-opening of the personal search service, as this was not pragmatic during the pandemic.
• The Council was taking in part in the NHS test and trace service; it would not compensate visitors who had to self-isolate due to COVID-19.
• People who were clinically extremely vulnerable had been advised by the Government to shield and stay at home.
• It was for employers to determine whether an employee was able to undertake their role and to make any adjustments necessary.
34. Mr D remained dissatisfied and replied asking to escalate his complaint to the second stage of the Council’s complaint procedure. The Council says it did not receive this email.
35. Mr D then submitted a request for information for a property. It is unclear whether this was submitted as an EIR request, but it was treated as a Freedom of Information Act (FOI) request.
36. In January 2021 there was a further national lockdown and on 7 January an officer emailed Mr D to say that the Council would once again carry out the personal searches for people.
37. The Council responded to the FOI request to say that the information was publicly accessible so it would not be provided. The Council then carried out the personal search and sent Mr D the information he had requested on the property on 19 January 2021.
38. Mr D approached the Ombudsman, but it was too soon for us to investigate as he had not completed the Council’s complaint procedure. We contacted the Council and it sent Mr D a final response on 29 April 2021. This said it had replied to Mr D’s FOI request and it provided links to other ways Mr D could access relevant information remotely. It did not uphold Mr D’s complaint that the Council had discriminated against him or other people with disabilities.
39. Mr D remained dissatisfied and came back to the Ombudsman. He said he had a psychological disability that the Council had refused to make a reasonable adjustment for. He could not visit the Council’s office to carry out the searches because, for example, there was no dimmed lighting, private room, or staff trained to deal with people with autism. He therefore wanted the Council to provide the search information to him.
40. We decided not to investigate as we did not consider that Mr D had been caused any injustice because it was his employer who was the user of the Council's service, he could obtain the information under the EIR, and the Council had started to carry out personal searches for free.
41. Mr D told us the Council was not providing information when he made an EIR request so we re-opened our investigation.

My findings

42. All councils provide free access to the land charges register. Since 2016 the Council has done this by providing public access to computers in one of its buildings. In response to my enquiries the Council said it had no record of an equality impact assessment being done when this started but the building was wheelchair accessible. Mr D could have complained about this at the time if he had concerns about the service, so I will not investigate this further.
43. In September 2020 the Council decided to re-open its personal search service. This is a decision it was entitled to make. It carried out a risk assessment and put measures in place to make its building covid-secure. It acted in line with the Government’s guidance so I do not find any fault with the way the Council decided to re-open the personal search service.
44. I acknowledge Mr D’s concerns about the risks of contracting COVID-19, but the Council could not be expected to eliminate that risk entirely and it took the steps required by Government to minimise the risk. People who are clinically extremely vulnerable were advised to shield; people may also have decided to stay at home if they lived with or cared for someone who is vulnerable.
45. Mr D also complains that the Council did not make a reasonable adjustment for him. The Council has said that it does not consider carrying out the personal search for Mr D would be reasonable; it says it would be a fundamental change to the nature of its service. The Council considered relevant factors and did not consider any irrelevant factors when making this decision. There is therefore no fault in how it made its decision and I cannot challenge the Council’s decision that doing the free personal search for Mr D is not a reasonable adjustment.
46. Mr D has referred to other adjustments, such as dim lighting or private rooms but I have seen no evidence that Mr D has asked the Council to make these adjustments.
47. The information needed to complete the LLC1 and CON29 forms is environmental information that can be requested for free. It is therefore not fault for the Council to offer the EIR route as an alternative to a personal search on its premises for those who cannot access its office.
48. Only the courts can decide whether the Council has discriminated against Mr D, but there was no administrative fault in the way the Council dealt with Mr D’s requests for reasonable adjustments.
49. I have seen evidence that Mr D made a FOI request for environmental information about a property on 18 December 2020. The Council replied on 11 January 2021 that the information would not be provided under FOI as it was publicly accessible. Mr D was concerned about this as he could not go to the office, so therefore the information was not accessible to him for free.
50. In response to my enquiries the Council said it had not considered the request under EIR as it was carrying out the personal searches for people at the time. It had therefore done the search and had sent Mr D the information on 19 January 2021. The Council did advise Mr D of this on 7 January 2021, but the reply to the FOI request could have been clearer. However I do not find fault with the way the Council dealt with Mr D’s FOI request or responded to his request for environmental information.
51. I have seen evidence that Mr D asked the Council to escalate his complaint to the final stage of its procedure on 4 December 2020. I therefore find it was fault for the Council not to do so. This caused Mr D time and trouble as he had to come to the Ombudsman to pursue his complaint.

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Agreed action

52. Within a month of my final decision, the Council has agreed to apologise to Mr D for the fault in complaint handling which caused him time and trouble.

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Final decision

53. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman