Summary: We will not investigate this complaint about the Council removing an accessible toilet from the reception area of one of its office buildings. There is insufficient evidence of fault by the Council, and we will not consider complaint-handling when we are not investigating the substantive matter.

The complaint

1. Mr X complained the Council removed an accessible toilet from the reception area of one of its office buildings. He said this meant he could not use it when he required an accessible toilet urgently, causing him significant distress and contributing to a flare up of his condition. Mr X said the Council failed to respond to his complaint. He wanted the Council to install the toilet again or consider enabling members of the public to use the staff toilet as a reasonable adjustment.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Several years ago, the Council decided to remove an accessible toilet from the reception area of one of its office buildings. Mr X says he recently required use of an accessible toilet urgently due to his medical condition when visiting the location. He says as a toilet had previously been available for members of the public to use, he visited the Council’s building expecting to be able to use it.
7. As the toilet was no longer in place, Mr X says he asked the reception staff whether they could escort him to the accessible staff toilet in the building as a reasonable adjustment. They refused his request.
8. Mr X complained to the Council but did not receive a response. The Council responded to Mr X’s MP when they made contact. The Council explained members of the public could not use the staff toilet as it was behind security doors. This is a decision the Council is entitled to make. Mr X challenged the Council’s reasoning, which highlighted in particular the difficulty of staff needing to escort members of the public. Mr X says there were two staff members on reception during the incident so he could have been escorted.
9. I will not explore this further. This is because, in any event, there is not a statutory duty for councils to provide public toilets, so we could not find the Council at fault for not having a toilet available to the public in this particular location. We are unlikely to find the Council did not have due regard to its responsibilities under the Equality Act 2010, because the rule applies to non-disabled members of the public too and the Council has provided valid justification relating to security.
10. In any event, on the occasion in question Mr X was able to use the nearest accessible toilet. While he says this is not always available, in this instance it was, and Mr X was not caused a significant injustice that would warrant further investigation. We will normally only investigate a complaint where:
• the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the service provider, or
• there are continuous and ongoing instances of a lower-level injustice that remain unresolved over a long period of time.
11. Mr X’s distress and the resulting flare-up he says he suffered on this occasion would not reach the above threshold of a significant injustice. Nor was it a recurring problem, as the toilet was removed several years prior to the incident.
12. I have considered whether the matter Mr X raised suggests an issue that would be in the public interest to investigate despite there not having been a significant personal injustice on this occasion in Mr X’s case. However, given that there is no statutory duty for councils to provide public toilets, I have decided there is no overwhelming public interest element that would justify investigation.
13. The Council considers its response to Mr X’s MP its final complaint response. It is not a good use of public resources to consider complaints about complaint-handling when we are not investigating the substantive matter, so we will not consider this further in isolation.

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Investigator's decision on behalf of the Ombudsman