Summary: Mrs B complained that the Council repeatedly failed to meet her reasonable adjustments when communicating with her about her son C. We found some fault in the Council’s actions. The Council has agreed to pay her £100 and take steps to ensure Mrs B’s reasonable adjustments are met in the future. We have not found fault with the operation of the complaints procedure.

The complaint

1. Mrs B complained that Middlesborough Council (the Council) in respect of her son C’s special educational needs and child protection issues, has repeatedly failed to adhere to her requested reasonable adjustments for large print communication (by email) and on green paper (for hard copy documents) and placed barriers in the way it communicates with her. It also failed to keep her informed for six years of progress with C’s Education, Health and Care plans and has refused to escalate her complaint to stage three of the statutory complaints procedure. This has caused Mrs B significant frustration and distress in trying to find out what was happening regarding her son.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B 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

Reasonable adjustments for people with disabilities

5. 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.
6. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics (including disability) listed in the Act. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
7. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any public body. 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.
8. 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.
9. 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.

Statutory children’s complaints procedure

10. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
13. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
14. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

15. Mrs B lives in a different part of the country to her ex-partner and her son C who live in the Middlesborough area. The Council has been involved with C for a number of years. He has a disability and special educational needs. Mrs B has a condition affecting her sight and is dyslexic.
16. She complained to the Council about several issues including the fact it was failing to meet her requested reasonable adjustments to provide copies of all communications on green paper. The Council investigated the complaint at stage two of the statutory children’s complaints procedure. It appointed an Investigating Officer (IO) and Independent Person (IP) in June 2022. They completed their investigation in September 2022 and the Council sent its adjudication response on 23 September 2022.
17. In respect of the complaint about reasonable adjustments, the Council did not uphold the complaint. It said:

“The IO has heard from the team manager, social workers and IRO that they were all aware of [Mrs B’s] dyslexia and there is a flag on her file to highlight this. The IO has seen evidence within the [C’s] records that from 28 April 2022, it is recorded on [C’]s case summary if you write to mother can you please add to green paper. The IO has not seen any other evidence that [Mrs B] has asked for any additional alterations to be made to how she is communicated with, or how workers are able to support her.”

18. The Council did partially uphold one complaint, concluding that although it was satisfied that Mrs B’s concerns were taken seriously, it agreed that the Council had not always communicated the outcome adequately to Mrs B. The Council agreed to eight recommendations aimed at improving its communication with Mrs B, including:
• provide a communication plan outlining expectations for responses;
• ensure Mrs B and her partner are invited to meetings about C by email or letter (printed on green paper); and
• arranging mediation between Mrs B, the team manager and social worker to find a resolution on working together collaboratively to ensure the best interests of C were paramount.
19. The IO’s report including a final section where the IO and IP met with Mrs B to present the report and Mrs B gave her views. She highlighted where she disagreed with some of the findings and the IO and IP responded.
20. On 18 October 2022 the Council offered Mrs B a meeting with a senior officer and the complaints officer to discuss her dissatisfaction with the complaint outcome. Mrs B responded saying that she had agreed with the IO and IP that the complaint would go to stage three. She said that her reasonable adjustments were still not being met.
21. The Council explained that the IO and IP could not decide that the complaint should go to stage three, and Mrs B needed to provide her specific reasons.
22. Mrs B then complained to us.
23. She has provided examples of communication from the Council (including the complaints, SEN and children’s services teams) not on green paper or in large print. She has also provided evidence she asked the Council on 16 May 2022 for communication on green paper in 24 point print.
24. The Council in response to my enquiries said the first time it knew of Mrs B’s request for reasonable adjustments was in February 2022 when she asked for documents on green paper. It said the request for large print communication was not made until 21 January 2023 and has now been added to her file.
25. It said the communication plan had been agreed on 28 September 2022 by telephone and followed up by letter in early October 2022. It is also on C’s file in the children’s services team. The Council has offered mediation in addition to a joint meeting with the SEN and social care teams to ensure Mrs B is clear on C’s EHCP and that she has a copy on green paper.

Analysis

Reasonable adjustments

26. Mrs B asked the Council in February 2022 to send her documents on green paper. In May 2022 she asked for communications to be in black 24pt print on green paper. In September 2022 she asked for all correspondence on green paper. In January 2023 she again requested large print communication on a green background.
27. While some Council officers have responded to her in accordance with her requested reasonable adjustments, she has provided many examples of when they have not been met: for example children’s services have sent notes of meetings and conferences with a grey background and emails from officers in all departments are often in small print on a white background. This is fault which causes Mrs B distress, frustration and inconvenience, as she is unable to easily read important information about her son and it takes her additional time, both trying to read the information and contact the Council to ensure her reasonable adjustments are met.
28. I do not consider these omissions are one-off errors but a pattern of failure to adhere to them. I understand it is easy to forget when faced with work and time pressures, but the Council should do more to ensure they are met as often as possible.
29. I note some of Mrs B’s complaints are about paperwork in respect of her appeal to the SEND tribunal. In respect of these communications, it is for the Tribunal to ensure it is meeting Mrs B’s reasonable adjustments.

Statutory complaints procedure

30. The stage two investigation report contained a section where the IO and the IP had met with Mrs B to present their report and give her a chance to provide feedback. Both the IP and IO responded to the concerns raised by Mrs B. I think Mrs B has referred to this section as providing her reasons for wanting to proceed to stage three.
31. I agree with the Council that this part of the stage two process cannot be used to escalate Mrs B’s complaint to stage three. It is a good practice way of closing the stage two investigation report and correcting any errors or misunderstanding but it came before the formal end of the stage two process (the Council’s adjudication letter) and the complainant needs to reflect on the whole process before giving their reasons for continuing. Mrs B needs to state in an email, letter or telephone call, why she remains dissatisfied and wishes to proceed to stage three.

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Agreed action

32. In recognition of the injustice caused to Mrs B, I recommended the Council within one month of the date of my final decision:
• apologises to Mrs B and pays her £100;
• offers to take her reasons for proceeding to stage three of the complaints procedure by telephone and confirmed by email (in accordance with her reasonable adjustments); and
• reminds all staff who communicate with Mrs B in the children’s services, SEN and complaints teams of her reasonable adjustments, make a note on all her relevant files of the adjustments and ensure they are met as far as possible when communicating with her by email and sending hard copy documents by post.
33. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

34. I consider this is a proportionate way of putting right the injustice caused to Mrs B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman