Summary: Mrs X complained the Council ignored her request for a reasonable adjustment leaving her unable to access the Council’s complaint process, causing her frustration and additional costs. We found the Council was at fault for not properly considering Mrs X’s request for a reasonable adjustment. We recommended the Council provide an apology and payment to Mrs X and act to prevent recurrence.

The complaint

1. Mrs X complains the Council ignored her request for a reasonable adjustment leaving her unable to access the Council’s complaint process, causing her frustration and additional costs.

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What I have investigated

2. I have investigated Mrs X’s complaint about how the Council handled her request for a reasonable adjustment. Paragraph 69 sets out my reasons for not investigating other matters.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the Council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
5. We cannot find that an organisation has breached the Equality Act 2010. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
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. I considered information provided by Mrs X and the Council. I discussed the complaint with Mrs X.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Reasonable Adjustments

9. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function.
10. Its aim is, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
11. 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.
12. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.

Council’s Equality and Diversity statement

13. The Council’s Equality and Diversity statement explains its commitment to improving the quality of life for everyone.
14. One of its objectives is to ensure services delivered by, or on behalf of, Wakefield Council are- as far as possible- accessible and do not discriminate.

Council’s complaint policy

15. The Council publishes its complaint policy on its website. It explains how it handles and resolves complaints.
16. A formal complaint can be made in person, in writing, by telephone by email, on the Council’s website or on its compliments and complaints leaflet.
17. It does not contain information about requests for reasonable adjustments.

Council’s complaint leaflet

18. A copy of the Council’s complaint leaflet is accessible online. It explains how the Council deals with complaints.
19. It includes a monitoring form, which says it is used for monitoring purposes only.
20. It does not contain information about asking for reasonable adjustments.

Principles of good administrative practice

21. In 2018 the Ombudsman published its ‘Principles of good administrative practice’ guidance for local authorities. Some of the core principles are an expectation local authorities will act on:
• ‘acting fairly and proportionately’ by being alive to the need for reasonable adjustments to ensure no person is placed at a disadvantage in using a service due to a disability.
• ‘being open and accountable’ by keeping proper and appropriate records.

Effective complaint handling

22. In 2020 the Ombudsman published its updated ‘Effective complaint handling for local authorities’. One of the core principles is an expectation local authorities will act on:
• ‘being customer focused’ by considering whether it needs to make any reasonable adjustments for the complainant.
23. It also says we believe the best way to accurately define a complaint is to speak to the complainant. This will allow local authorities to:
• check its understanding of the issue to investigate, and which complaint process to use.
• manage the complainant’s expectations and answer any questions about the process.
• hear the complainant’s view of what has gone wrong and how they say it has affected them.

What happened

Original complaint

24. In April 2021 Mrs X complained to the Council about the handling of her planning application and the way in which Council staff had communicated with her.
25. Mrs X said she had autism and found it hard to put details in writing. Mrs X asked the Council to call her to ensure a good understanding of her complaint.
26. On 10 May, Mrs X sent the Council an email asking to discuss her complaint with someone.
27. On 11 May, the Council sent an email to Mrs X explaining it was investigating her complaint and would provide her with a Stage 1 complaint response in due course. It did not mention whether it had considered Mrs X’s request for someone to call her.
28. The Council sent Mrs X its Stage 1 response dated 20 May. It did not uphold the part of her complaint about how staff dealt with her, however, it invited Mrs X to supply any evidence to support her complaint and it would then revisit this aspect of it.
29. Mrs X sent an email to the Council explaining its response did not address the main parts of her complaint. Mrs X said this was due to the Council not fully understanding the complaint because of her inability to clearly communicate in writing.
30. Council Officer A emailed Mrs X on 25 May and offered her a conference call to discuss parts of the complaint Mrs X felt the Council had not understood and for the Council to explain the contents of its complaint response.
31. In response, Mrs X asked Officer A if the Council planned to re-start the complaint at Stage 1.
32. In a further email the same day, Officer A explained to Mrs X the conference call was the reasonable adjustment she had asked for. Officer A confirmed the Council did not intend the restart the complaint process at Stage 1, and the meeting would be to explain the Council’s response to issues raised in the complaint.
33. Mrs X decided to progress the complaint of April 2021 to a Stage 2 investigation and confirmed this with another Council Officer, Officer B.
34. Officer A emailed Mrs X on 27 May and explained that when coordinating some dates for the conference call to take place, they became aware Mrs X had decided to escalate her complaint to Stage 2. Due to this, it was Officer A’s understanding that Mrs X no longer wanted to proceed with the conference call and confirmed the matter would now be progressed through the Council’s complaint procedure.
35. When investigating the complaint at Stage 2, the Council said in its response to my enquiries, it spoke with Mrs X on the telephone. It said Mrs X discussed the information she had not provided in her initial complaint.
36. The Council says, during the call it explained to Mrs X it was already aware of this information and it had therefore responded appropriately at Stage 1. The Council confirmed it does not have a call recording.
37. Mrs X says, the telephone call which took place on the 1 June 2021, did touch on some of the information she had not provided in her initial complaint, however the call was not arranged for the purpose of allowing her to provide information about her complaint and was related, instead, to her planning applications.
38. The Council sent Mrs X its Stage 2 complaint response on 17 June. It said the Council had offered Mrs X as much assistance as possible over the last 12 months and could not identify any evidence to support her complaint.
39. Mrs X emailed the Council on 21 June to query how her complaint was investigated at Stage 2 without the Council contacting her to take the details of the complaint verbally.
40. The Council responded the same day, explaining while Mrs X had not identified any individuals in her complaint, Council investigations had established this information and enabled the investigation at Stage 2.
41. In comments on a draft of this decision, Mrs X said she had not disclosed, to the Council, the identity of the Council Officer she was referring to in her complaint and believes therefore it could not have investigated the complaint properly.

Reasonable adjustment complaint

42. On 26 May Mrs X sent a further complaint to the Council about it failing to make a reasonable adjustment to enable her to fully access the Council’s complaint process.
43. The Council sent Mrs X its Stage 1 complaint response on 17 June. Its response referred to how it handled Mrs X’s original complaint and said:
• Complainants are not normally contacted unless their complaint is incomplete or unclear.

• It acknowledged Mrs X asked to be contacted about her complaint by telephone.
• Mrs X’s complaint was detailed and supported by emails which provided enough information for it to be investigated under the Council’s complaint procedure.
• It offered Mrs X a meeting to discuss the Council’s Stage 1 response providing opportunity for both parties to give and/or respond to any further information.
• The Council’s complaints procedure was accessed and activated by Mrs X and her complaint investigated. It did not find Mrs X was denied the right to access the Council’s complaint procedure.

44. It did not say whether it had considered Mrs X request for a reasonable adjustment at the start of the complaint process.
45. Mrs X was unhappy with the Council’s Stage 1 response and asked for the Council to look at her complaint at Stage 2.
46. The Council did not uphold Mrs X’s complaints at Stage 2. It said:
• Its offer of a meeting to discuss its Stage 1 complaint response was a reasonable adjustment.
• It was Mrs X’s decision to withdraw from the meeting it offered as a reasonable adjustment.
• It is entitled to administrate its formal complaints process as set out in its policy.
• Mrs X had been able to ‘fully and fairly access the Council’s complaint procedure’.
• No barriers or obstacles were put in place, due to Mrs X’s disability or otherwise.
47. It did not say whether it had considered Mrs X request for a reasonable adjustment at the start of the complaint process.
48. Mrs X was unhappy with the Council’s response and brought the complaint to the Ombudsman.
49. In response to my enquires the Council said:
• Enough information was provided by Mrs X at the start of the complaints process, to respond to her complaint.
• When Mrs X queried the Stage 1 response, it offered her the opportunity to discuss her concern.
• It spoke with Mrs X during its original Stage 2 investigation and established it already knew the information Mrs X wanted to provide.
• It acknowledged the failure to call Mrs X but could not identify any injustice caused by this.
• Where appropriate, it makes reasonable adjustments.
• Its complaint leaflet invites information about disabilities, to understand any potential reasonable adjustments.
• Its case management system has alert markers, letting staff know of any reasonable adjustments needed.
50. Mrs X told me she also paid a third party £500, to represent her in her ongoing communications with the Council. Mrs X said this is because the Council is still not meeting her request for a reasonable adjustment.
51. In comments on my draft decision Mrs X said, in summary:
• While the Council’s Stage 1 response referred to reviewing further evidence, the Council’s email stated it was offering to discuss elements of the complaint Mrs X believed were not understood and explain the content of its response, as opposed to reviewing evidence.
• The Council incorrectly claimed the conference call was a reasonable adjustment. The offer was only to explain and go over its response, after the fact. This was not the reasonable adjustment requested.
• Mrs X did not decline the conference call. It was accepted and more dates were requested. The Council withdrew the offer as Mrs X had progressed the complaint to Stage 2.
• The claim that the Council called Mrs X at the Stage 2 investigation of the initial complaint is not as the Council say.
• The Council insisted Mrs X instruct a third party to act for her in communication with the Council regarding her planning applications. One at the beginning, as the Council would not engage with her directly and ignored her emails, and the other instructed later for ongoing communication with Council.
• The actions of the Council caused Mrs X distress, and she does not want to feel that way again.

Analysis

52. Mrs X asked the Council to call her to enable her to access its complaint process. The Council needed to consider this request and make this adjustment, if reasonable.
53. The Council decided it had enough information to progress the complaint without speaking to Mrs X, however there are no contemporaneous notes to support this. Only after it had sent its Stage 1 response did it explain its decision to Mrs X. There is no evidence the Council considered Mrs X’s request at the start of the complaint process, and this is fault.
54. This failure to consider a reasonable adjustment, resulted in Mrs X feeling frustrated and distressed due to the lack of regard shown to her. However, I cannot say whether the Council would have agreed the request, if considered at that time.
55. Mrs X made a further request on 10 May which the Council ignored. And, in its complaint responses 20 May and 17 June the Council did not address her request or give reasons for not agreeing to it. This amounts to fault. This caused Mrs X further frustration and distress.
56. I note the Council offered Mrs X a conference call following its stage 1 response. I am satisfied this would have prevented any further injustice to Mrs X. This is because I am satisfied, given the Council’s email referred to at paragraph 30, that Mrs X would have had the opportunity to provide further information relevant to her complaint if she wished. Although Mrs X also wanted the Council to restart its complaint process, it was not obliged to do so. As Mrs X says she has not yet disclosed the identity of the Council Officer, she can raise this now to the Council if she wishes.
57. The Council considered its offer of a conference call met its duty and Mrs X’s reasonable adjustment request. I note Mrs X disagrees, however only the courts can settle disputes about the interpretation of the law. Mrs X could go to court if she believes the Council has discriminated against her by failing to make a reasonable adjustment.
58. The Council did not have to agree to Mrs X’s requests for a phone call. Its response to my enquiries suggests a lack of understanding of its duty to consider requests for reasonable adjustments, not to simply grant them, as such, I will therefore make a service improvement recommendation.
59. Mrs X’s complaint that the Council insisted she instruct a third party to act for her at the beginning of her communication with the Council, regarding her planning applications, was not part of her original complaint to us. It is not appropriate to include this in my current investigation as it is a separable issue and was not raised in the complaints process referred above. I have therefore not investigated this.

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Agreed actions

60. To remedy the injustice set out above I recommend the Council carry out the following actions:
61. Within one month:

• Issue an apology to Mrs X.
• Pay Mrs X £100 which is a symbolic payment to reflect the frustration caused, and the Council’s failure to consider her request for a reasonable adjustment from the start of the complaint process.

62. Within three months:
• Review and update its complaint policy to include consideration of reasonable adjustments at the start of the complaints process and, communicate this change and the reasons behind it to relevant staff.
63. The Council has accepted my recommendations.

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Final decision

64. I have found fault by the Council. This fault caused Mrs X injustice and the Council has agreed to my recommendations therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

65. I have not investigated Mrs X complaints about:

• ongoing actions of the Council and any costs incurred, as the Council has not yet had the chance to investigate this.
• any planning applications as this has been dealt with separately, under another complaint with the Ombudsman.

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Investigator's decision on behalf of the Ombudsman