Summary: Mr X complained he was excluded from the Council’s Rapid Employment Service. He also complained the Council’s investigation of his complaint was flawed. The Ombudsman found no evidence the Council excluded Mr X from its service. The Ombudsman did find fault in the Council’s record keeping and in the complaint process. It agreed to apologise to Mr X.

The complaint

1. Mr X complained he was excluded from the Council’s Rapid Employment Service. He said the Council discriminated against him, failed to put reasonable adjustments in place, and an officer harassed and bullied him.
2. Mr X also complained the Council’s investigation of his complaint was flawed because it found he did not complete the registration process for the Rapid Employment Service. However, an officer later confirmed Mr X had completed the registration process and did not need to provide anything else.
3. Mr X said he was denied support, resulting in loss of opportunity to gain employment, financial loss, and distress.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Equality Act 2010.
8. Mr X 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

Rapid Employment Service (RES)

9. The Council launched its RES during the COVID-19 pandemic to offer remote support to help residents find a new job.
10. The support the Council can offer includes:
• Access to a personal employment adviser.
• One-to-one support.
• Help to amend or create a CV.
• Support with applications, cover letters and personal statements.
• Job interview preparation.
• Access to job specific training.
• Assisted job search sessions.
• Access to job vacancies and apprenticeship opportunities.
• Online group workshops.
11. To join the RES, residents must complete a registration process including providing proof of identity, proof of address, and completing an action plan.

Equality Act

12. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
13. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
14. The protected characteristics referred to in the Act are:
• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.
15. A mental health condition is considered a disability if it has a long-term effect on someone’s normal day to day activity.
16. A condition is ‘long-term’ if it lasts, or is likely to last, 12 months.
17. ‘Normal day to day activities’ can include things like using a computer, working set times, or interacting with people.

Direct and indirect discrimination

18. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
19. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
20. 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.

Reasonable adjustments for people with disabilities

21. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
22. Service providers are 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 make them.
23. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
24. However, councils are not expected to anticipate the needs of every individual who may use its services.
25. 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.

Public sector equality duty

26. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
27. The broad purpose of the public sector equality duty is to consider equality and good relations in the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
28. One way for local authorities to show this is to carry out equality impact assessments. However, this is not a legal requirement.

What happened

29. I have detailed below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
30. Mr X emailed the Council’s RES on 1 March 2021 to express his interest. He asked the Council for registration details and further information.
31. The Council told Mr X he needed to provide identification, proof of address, proof of national insurance, and a copy of his CV.
32. The Council assigned Mr X an adviser, who I will call Adviser A. Mr X emailed Adviser A on 4 March, asking for help with a job application with a deadline the next day. Adviser A replied to Mr X the same day with advice.
33. Mr X and Adviser A met via online video conference on 5 March. Mr X then emailed Adviser A giving details of his qualifications and the roles he was interested in.
34. Adviser A asked Mr X for proof of his right to work in the UK. She also asked Mr X to speak on the telephone to complete an action plan.
35. Mr X asked Adviser A to send relevant documents to him in electronic format as a reasonable adjustment.
36. Adviser A asked Mr X why he needed the documents in another format. She said the current form can be completed electronically and Mr X does not need to print it.
37. Mr X said he is entitled to adjustments without full disclosure. He said the Council is required to provide a range of methods to access its services to eliminate discrimination.
38. Adviser A said the Council’s RES made adjustments and, while not asking for full disclosure, they wanted to understand why Mr X sought adjustments, so they could improve the support provided and make necessary adjustments in future.
39. As a reasonable adjustment, Adviser A offered to complete the form with Mr X by telephone. Advisor A also asked Mr X to send photographs of his right to work documents via a mobile phone messaging application.
40. Adviser A said there is a criterion for the Council’s service, and they have a duty to ensure everyone receiving support meets the criteria. Although Mr X had not completed the Council’s registration requests, Adviser A said they still provided Mr X with employment support. However, if he could not supply registration information then that support would have to stop.
41. Mr X said he is eligible for the service, so it is unlawful to exclude him. He suggested Adviser A reviewed the Equality Act and public sector equality duty and come up with a solution.
42. Adviser A said she had not excluded Mr X from the service, but she had concerns about his references to the Equality Act, so she approached the project manager for advice.
43. Mr X contacted the project manager on 8 March. He said the Council’s approach was discriminatory because it was not providing him equal access to the service. He said he was not obliged to discuss personal matters and the Council was not entitled to ask him to. He said the Council treated him less favourably and Adviser A placed barriers in front of his registration by not providing documents in another format.
44. The project manager spoke to Mr X by telephone on 10 March. The project manager confirmed the Council would make reasonable adjustments for him to register, and outlined the three required steps:
• Enrolment form (completed online, by email, or by phone).
• Action plan (ideally completed online, or by email or phone).
• Documentation (sent online or by mobile phone application).
45. Adviser A confirmed receipt of Mr X’s proof of identification evidence on 12 March and scheduled a call for 15 March 2021 to discuss his action plan.
46. Mr X provided me with a recording of the telephone call with Advisor A. He said Advisor A implied the action plan was optional, not mandatory, so he did not have to complete one if he did not want to, and at the end of the call Advisor A did not say the action plan was incomplete.
47. I have listened to the call recording. To summarise, Advisor A said the purpose of the call was to get to know Mr X and to introduce herself. On the action plan, Advisor A said they could go through this if Mr X thought it was useful, but if he felt it was not relevant, or he did not want to discuss it with her, that was fine. Mr X said he could give Advisor A the basic information. Advisor A said it seemed Mr X knew the type of support he needed, so they had gone straight in with regards to support with job applications.
48. Mr X and Advisor A discussed Mr X’s qualifications and the type of support he wanted. Mr X asked for support in writing a personal statement, looking for jobs, and checking his applications. Mr X also asked whether Advisor A had access to the civil service judgement tests. Advisor A said she made a note of this and whatever information she did not have she would see if a colleague did have it.
49. Mr X emailed Adviser A on 15 March, after their telephone conversation. He said he was applying for a job and asked the employer for adjustments for his interview. The employer made an offer of adjustments, but Mr X said it was unsuitable and rendered him disadvantaged. The employer said they would need more information about his disability.
50. Mr X asked for Adviser A’s help replying. He also asked Adviser A to obtain his answers to judgement test questions from the employer.
51. Adviser A said that may not be possible due to data protection. Advisor A suggested Mr X ask for this information himself.
52. On Mr X’s disability, Adviser A said Mr X was not required to reveal details to the employer but may be expected to give reasons for why he was asking for adjustments.
53. On 22 March Mr X emailed the project manager again. He asked what support the Council could provide in requesting adjustments to the recruitment process from potential employers. He asked the Council to provide this for him as a reasonable adjustment.
54. Adviser A emailed Mr X on 24 March asking him to arrange a telephone call so they could complete his action plan.
55. Mr X asked Adviser A for advice about what to say to an employer about the reasonable adjustment duty. Adviser A said they did not have knowledge of the reasonable adjustment duty beyond what is available online.
56. Mr X said the RES should provide support with every step of the journey to get a new job. He said the Council had a duty to provide an inclusive service for people with protected characteristics. He said Adviser A had not provided him with relevant support under the Equality Act. He asked Adviser A to escalate this to a manager.
57. The project manager contacted Mr X on 30 March to say the Council had appointed him a new adviser (who I shall call Adviser B). The project manager said a fresh start would be helpful and Mr X would need to complete an action plan and discuss adjustments with them.
58. Adviser B set up a telephone call to complete an action plan with Mr X the following day.
59. Mr X emailed Adviser B. He said he completed an action plan with Adviser A. He also said he would like adjustments for their appointments, and he asked Adviser B to adjourn their telephone call until the Council had resolved whether he had already completed the action plan.
60. Adviser B said there was no action plan for Mr X on the Council’ system. He said he needed to find out Mr X’s barriers and present possible solutions. Advisor B said the action plan is a working document which will be regularly reviewed, and each new adviser must complete one. Adviser B said it was a simple process Mr X was trying to unnecessarily bypass, and he would clarify this when they spoke.
61. Adviser B emailed Mr X on 31 March. He said Mr X missed their telephone appointment, which could have gone to someone else. Advisor B also said there were still missing registration documents.
62. Mr X said there was an oversight about missing documents because he already completed the registration process with Adviser A and had been using the service several weeks. He referred to the Equality Act and public sector equality duty about taking steps to minimise disadvantages to people with a protected characteristic. As an adjustment, Mr X asked Adviser B to take a different approach.
63. Adviser B said Mr X’s disability does not affect him providing the required documents. He said the process is the same for everyone and registration normally takes an hour. Advisor B said they were going back and forth over issues and using valuable community resource. Adviser B said if Mr X would not provide documents and complete an action plan they could not proceed.
64. Mr X then emailed the project manager. He said Adviser B’s comments were inappropriate and impacted his disability. As a reasonable adjustment, he asked for Adviser A to be re-assigned.
65. The project manager said Adviser B tried to work with Mr X to register him. This had been unsuccessful because Mr X had not given proof of address and did not attend an action plan appointment needed as part of the service. The project manager said there had been unnecessary back and forth emails when advisers had stated clear steps which Mr X needs to follow to access support. The project manager said Mr X needed to work with Adviser B.
66. Mr X accused the Council of oversights, irregularities, and discrimination. He said he registered with his Adviser A, and it was unreasonable to ask him to do it again. He said he did not fail to attend an appointment, he asked to adjourn until matters were resolved. He said he already completed an action plan over the phone with Adviser A and the Council was not making adjustments for him.
67. Mr X asked the Council for urgent help to prepare responses to interview questions on 14 April.
68. The project manager said the Council was happy to support Mr X, but he must complete the registration steps, as this is essential to support him in the best way.
69. Mr X repeated he had already registered and completed an action plan. He said Adviser B bullied and harassed him.
70. When Mr X did not receive a response, he made a formal complaint. In his complaint he said the Council:
• Unlawfully discriminated against him or failed to make reasonable adjustments under the Equality Act regarding his email request dated 31 March 2021.
• Treated him unreasonably and less favourably.
• Harassed him and victimised him.
71. The Council responded to Mr X’s complaint on 17 May. It said officers considered his requests for reasonable adjustments and offered alternate arrangements, such as the registration form in another format. It said the registration process was explained to Mr X, but he did not provide a completed registration form or proof of residency.
72. Mr X was unhappy with the Council’s response. On 21 May, he asked the Council to re-consider his complaint. He said:
• The complaint procedure was unfair and biased because the Council did not offer adjustments (Mr X wanted to be able to respond to officer claims and validate whether all relevant correspondence was examined).
• The process was not transparent because the Council did not say which officers were interviewed.
• The Council failed to make any finding about his request for adjustments on 31 March.
• He completed the registration process with Adviser A on 12 March.
• His complaint related to the actions of Adviser B.
• The project manager failed to take his allegations of harassment and bullying by Adviser B seriously.
73. The Council sent its final complaint response on 28 June. It did not uphold Mr X’s complaint. It said:
• It saw no evidence officers, including Adviser B, bullied or harassed Mr X.
• The project manager paused contact after 14 April because Mr X had made a formal complaint. It apologised for not telling him this.
• Officers made reasonable adjustments for Mr X so he could register.
• Mr X did not complete registration or provide all necessary evidence.
• Nevertheless, officer gave advice on gaining employment and gave Mr X time to provide missing documents.
• Officers were following the correct process by asking Mr X for registration information.
74. On 30 June, the project manager of the RES emailed Mr X. He wanted Mr X to re-engage with the service and wanted to agree steps for him to receive support. The project manager said, “from the investigation findings, I am satisfied that you have registered with us and will not need to provide any further documents.” The project manager went on to say Mr X could have a new adviser and start afresh but he will need to complete a new action plan.
75. Mr X brought his complaint to the Ombudsman on 2 July 2021.

Response to enquiries

76. The Council told me its RES aims to support people on their journey towards employment. It is part of a wider provision of employment, business, skills, and adult learning support. It said equality and inclusion underpins the services offered. It provided me with relevant documents in support of this.
77. Participants must provide proof of address as part of the registration process. The Council said Mr X never did, but it supported him anyway.
78. An action plan is needed so the Council can tailor its service to people, understand their needs, and explain expectations of the service.
79. The Council said Adviser A tried to create an action plan but did not complete it because Mr X rescheduled or did not attend appointments. However, Adviser A continued to support Mr X with job applications.
80. The Council told me Mr X asked:
• To switch from phone to online video meetings.
• For registration and action plan documents in an alternative format.
• For job bulletins in an alternative format.
81. The Council said it has offered Mr X several alternatives for his engagement in the service, including virtual and telephone engagement at his request. The Council has also provided documents in alternative formats.
82. The Council said it is unaware of any instance it ignored a request from Mr X. However, it said support was not always possible because some of his requests were beyond the remit of the RES (such as to ask employers for interview questions).
83. The Council said Mr X made other requests, but they were not in the Council’s gift to provide, particularly about applications to third-party employers. Although the Council has supported Mr X with this, the arrangements themselves are the responsibility of the third-party employer. Mr X also asked to attend an interview skills workshop online rather than in person. This was not possible as the session was hosted by a third-party who could not accommodate it.
84. The Council told me its advisers often share common domain vacancies and opportunities with candidates. These are third party alerts and bulletins. Mr X’s adviser agreed to provide him with such bulletins in larger font in future. Mr X also asked advisers to send details of higher pay band roles. The Council said while it can support Mr X in accessing the relevant job portal, it has no added access to higher pay band roles.
85. The Council said it has endeavoured to fulfil its obligations under the public sector equality duty. This has been through providing reasonable adjustments and supporting Mr X. No decision, of which is in the Council’s control, was made not to make adjustments for Mr X.
86. The Council accepts an email sent to Mr X (by the project manager) after his complaint was misleading and unclear. The Council maintains the documents Mr X provided were not enough to complete registration and this was communicated to him on several occasions. Despite this, the Council continued to support Mr X.
87. On Mr X’s complaint about Adviser B, the Council said his complaint was investigated by the project manager, who spoke to Adviser B and reviewed all correspondence. The project manager saw no evidence of harassment or bullying. He found some emails were direct, but not rude or harassing.

Analysis

88. Mr X has a mental health condition. If his condition has a long-term effect on his normal day to day activity it would be classed as a disability and would therefore be a protected characteristic under the Equality Act.
89. Mr X told me his condition can cause him to suffer stress, anxiety, fear, panic, low confidence, confusion, sadness, and depression.
90. I do not know full details of Mr X’s condition, or what impact it has on his ability to access the Council’s RES.
91. The Council’s RES has a registration process which applies to anyone wishing to join.
92. Mr X thought he had already completed the registration process with Adviser A. The Council disagreed.
93. Advisor A suggested the action plan was not compulsory. That was contrary to what the project manager and Advisor B told Mr X. The Council consistently asked Mr X to complete one. I am therefore satisfied it was a requirement.
94. On the evidence seen, Mr X did discuss an action plan with Advisor A at an early stage, but Advisor A did not record the details. That was fault. Due to the lack of records, I cannot say whether the action plan was completed in full. This caused Mr X avoidable frustration because he was asked to repeat information he had already given.
95. Mr X said the Council failed to consider the impact of his disability by asking him to complete the action plan again.
96. The Council was entitled to ask Mr X to complete an action plan in order to best support him. Because there was no completed action plan on file, it was not fault for Advisor B to ask Mr X to do this again. The Council said an action plan needed to be kept updated and each advisor would need to complete one. I appreciate it was frustrating and inconvenient for Mr X, but I have not seen evidence he was disadvantaged or treated differently by the Council asking him to complete this again.
97. Mr X disagrees with the Council about registration documents. He said he provided them to Advisor A. The evidence seen shows Mr X did provide documents to Advisor A, but Advisor B later clarified Mr X’s proof of address was not sufficient and asked for further proof. On that basis, I consider the Council was entitled to say Mr X had not completed the registration process. Even if Mr X had already provided the relevant documents, I do not consider the Council placed him at a disadvantage or treated him differently by asking him to send the documents again.
98. Mr X said he was eligible for the RES, so to not provide support would be unlawful. The Council is entitled to decide eligibility through its registration process. I have not seen evidence the Council placed barriers in front of Mr X completing the registration process. It tried to work with him and tried to understand what adjustments he needed and why. In addition, it continued to provide employment support.
99. I have not seen evidence the Council failed to consider its duties under the Equality Act. Mr X is entitled not to discuss his disability if he does not wish to, and he is correct the Council’s duty is anticipatory. However, we do not expect councils to anticipate every need. It offered what support it reasonably could, and its policies show it considered how people with protected characteristics under the Equality Act could access its service. I therefore do not find the Council at fault for not doing more where it did not know more about Mr X’s condition.
100. It is not my role to judge whether the Council discriminated against Mr X. My role is to consider whether it had proper regard for its duties under the Equality Act and whether it properly considered Mr X’s requests for reasonable adjustments.
101. On the evidence seen, the Council considered each of Mr X’s requests for adjustments. Where the Council could provide adjustments it did.
102. Mr X complained Adviser B bullied and harassed him. I recognise Mr X has found his dealings with the Council difficult and upsetting, but my investigation has not found any fault in the way the Council dealt with him. I do not find that Adviser B acted inappropriately in this regard.
103. It is not the Ombudsman’s role to decide whether harassment took place. Mr X can report this to the Police if he wishes.
104. It appears Advisor B missed Mr X’s request adjourn their arranged telephone call. I can therefore appreciate why Mr X was upset when Adviser B said he failed to attend.
105. Some of Adviser B’s emails to Mr X were direct. For example, Adviser B said Mr X’s disability did not prevent him from accessing the service and the normal registration process did not place any barriers in front of Mr X.
106. Adviser B could have been more understanding. Though I appreciate he considered Mr X was placing added demand on the service. I do not consider Adviser B’s actions amount to administrative fault because I have not seen evidence the Council failed to consider Mr X’s disability or his requests for reasonable adjustments.
107. Mr X also complained the Council failed to properly investigate his complaint. He said the Council did not take reasonable steps to find out what happened to the action plan he completed over the telephone with Advisor A.
108. The Council’s stage one complaint response addressed the general actions it had taken to make reasonable adjustments. However, Mr X wanted the Council to specifically investigate the adjustments he asked for on 31 March 2021 - namely for Adviser B to take a different approach or for the Council to reinstate Adviser A. Unfortunately, the Council did not address that.
109. Mr X asked the Council to reconsider his complaint. He emphasised he was complaining about the actions of Adviser B and about his email on 31 March.
110. The Council’s final response made more broad findings about the support and adjustments it offered Mr X. This time the Council did specifically consider Mr X’s interactions with Adviser B. It said it found no evidence of bullying or harassment. However, again the Council did not specifically address Mr X’s request for adjustments on 31 March.
111. The disagreement Mr X had with Adviser B on and around 31 March was about registering for the service. The Council did address the registration process in its complaint responses, and how it made adjustments so Mr X could register.
112. However, given Mr X twice specifically asked the Council to address his adjustment request of 31 March, I consider it was fault for the Council not to mention it.
113. At the time of Mr X’s request of 31 March, the project manager said Mr X needed to work with Adviser B and provide the requested information. Mr X was entitled to ask the Council to reinstate Adviser A, but the Council was not under a duty to agree. Mr X needed to provide the required information no matter who the adviser was.
114. While I can appreciate Mr X did not like the way Adviser B spoke to him, I have not seen evidence the Council should have changed advisers as a reasonable adjustment linked to Mr X’s disability, or that the presence of Adviser B placed a barrier in front of Mr X accessing the service.
115. On the evidence seen, the Council could have made more checks and found the call recording between Mr X and Advisor A. If it had, some of Mr X’s complaints may have been avoided. However, that would not alter the position about Mr X’s proof of address, so the registration process would still be incomplete as far as the Council was concerned. In addition, the Council continued to provide Mr X employment support.
116. I therefore do not consider the fault in the Council’s complaint handling affected the outcome or caused Mr X significant injustice.
117. After the Council’s complaint investigation, the project manager reached out to Mr X so he could re-engage with the service. The project manager’s email implied Mr X had registered for the service, so he did not need to provide any further information. The Council accepts this was misleading but maintains Mr X did not complete the registration process.
118. On the evidence seen, this was an unfortunate miscommunication. It is clear throughout that the Council was not satisfied Mr X had registered for the service. While I appreciate Mr X’s frustration, I do not consider the miscommunication undermined the Council’s investigation findings or altered the fact he had not completed the registration process.
119. In terms of Mr X’s claimed injustice, I found the Council did still offer employment support to Mr X. Advisers helped him with his CV, with job applications, and with interview questions. I therefore do not consider there was any demonstrable lost opportunity. Even if I had found fault, or that the Council denied Mr X access to the service, I cannot say that stopped him from getting a job. Mr X was offered an interview by at least one employer. What happens next, and whether the employer provides suitable adjustments, is out of the Council’s control.
120. As at paragraph 94, I found the Council’s failure to record details of the telephone conversation about Mr X’s action plan caused him frustration and inconvenience. That is Mr X’s injustice.

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Agreed action

121. Within four weeks of my final decision, the Council agreed to apologise to Mr X for the frustration and inconvenience caused by its failure to record the conversation about his action plan.

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Final decision

122. Subject to further comments by Mr X and the Council, I intend to complete my investigation. The Ombudsman found no evidence the Council excluded Mr X from its service. The Ombudsman did find fault in the Council’s record keeping and in the complaint process. It agreed to apologise to Mr X.

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Investigator's decision on behalf of the Ombudsman