Summary: Mr X complained the Council failed to make reasonable adjustments when he contacted it about car damage he said was caused by a pothole. We found fault because the Council failed to consider Mr X’s request for a reasonable adjustment. To remedy the injustice caused by this fault, the Council has agreed to apologise, share information with relevant officers and review some of its procedures.

The complaint

1. Mr X complains the Council failed to consider its duties under the Equality Act 2010 when he contacted it regarding vehicle damage caused by a pothole on a Council maintained road. He says the Council failed to make reasonable adjustments:

• when he asked it for information to be sent in written form due to his hearing difficulties; and
• when asking for evidence in relation to the insurance claim process.

2. Mr X says this has caused him distress and frustration and that he has been discriminated against.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
6. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Reasonable adjustments

7. 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 at, or as close as possible 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 people 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.

What happened

10. In April 2023, Mr X called the Council to report damage to a car he had been driving. He said he had driven over a pothole on a Council maintained road and this had damaged the vehicle’s tyre.
11. Mr X has hearing difficulties and wears hearing aids.
12. During the call, the Council’s officer shared information about the pothole in question. Mr X says he struggled to hear the officer as he was softly spoken. Mr X then asked the officer to email him information about the pothole in writing.
13. Mr X says the officer refused to share this information via email as the public had no right to it. Mr X says the officer said he did not believe Mr X was hard of hearing and refused to give his name or any reference number to Mr X as an identifier.
14. Mr X complained to the Council a couple of days later. He was unhappy with the phone call and the Council’s procedure on how to make a claim for damage to the tyre.
15. At the end of April 2023, the Council sent Mr X its stage one complaint response. In this, it:
1. apologised for any upset caused during the initial call and said that staff were being reminded of the level of customer service it expected to be delivered;
2. confirmed its calls were not recorded at that time; and
3. explained more about what evidence was required to make a claim.
16. Mr X escalated his complaint through the Council’s process and received its stage two response by the middle of May 2023. The Council:
1. again apologised for Mr X’s experience;
2. clarified the evidence needed for the insurance claim and why this would be required; and
3. clarified the lessons learned and action taken as a result of the initial complaint.
17. Mr X was still unhappy so brought his complaint to us a short while later.
18. The Council has since confirmed to me the call was not recorded and no notes or records are held on file in relation to Mr X’s call.

Analysis

Initial call to the Council

19. Mr X complains the Council failed to make a reasonable adjustment (RA) when refusing to send out written information about the potholes.
20. The Council’s stage one complaint response advised Mr X that staff were unable to provide this information as it was not in the public domain but that the officer then read it out to him. The Council’s position here seems confused. If it was able to share the information over the phone, I am satisfied, that in the circumstances of this complaint, it could have sent Mr X the same information in written form, regardless of any hearing difficulty. This is fault. It meant that Mr X did not have access to the information he had requested and would have caused him frustration. I have made a recommendation below to remedy this injustice.

Making a claim

21. Mr X also said that he felt discriminated against as the actions needed to make a claim would be impossible for a disabled person.
22. In its response to him, the Council clarified what evidence would need to be submitted to its insurer so any claim could be assessed. It listed things such as:
1. a photo of the defect;
2. a photo of the defect in relation to its surroundings; and
3. a marked map showing the precise location of the defect.
23. When looking at the list of required evidence of the ‘defect’, Mr X took this to mean that the Council required a photo of the damage to the car, not the road surface. He complained he would not be able to get under the car to take a photo of the damaged tyre, especially at the side of the road. He also initially questioned where he should get a map of the pothole’s location from.
24. The Council later told Mr X this meant the road defect itself (the pothole) and that a marked image of the location using internet software or a screenshot of a map with the location marked on it would be sufficient. I am satisfied the Council’s original wording on its website (which was also sent to me in its enquiry responses) is unclear and could lead to unnecessary confusion. This is fault. While there is no ongoing injustice to Mr X here, I have made a recommendation below to prevent a reoccurrence of similar confusion in the future.
25. I have also viewed the requirements of the claims process and other evidence which must be submitted. I am satisfied that the evidence requests are justifiable and that without them it would be unlikely the claim could be adequately assessed. I find no fault in the actions of the Council here.

Reasonable adjustments

26. In my enquiries to the Council, I asked it to explain any processes it has in place to agree and record an RA when requested by a member of the public. I also asked if it had an RA policy.
27. In response to my enquiries, the Council explained it has adopted a ‘policy-light approach’ to RAs and as such has no policy. The Council did highlight its website accessibility page which details some changes that can be made when using the website. The Council also explained that all employees undertake training on equality and diversity with refresher training taken every two years.
28. It is not for the Ombudsman to decide what may or may not be reasonable when an adjustment is requested by a member of the public. The Council does, however, have a statutory duty to consider any requests for RAs as part of its duties under the Equality Act 2010.
29. Mr X advised the Council he required an RA but there is no evidence that it considered this request. It should have taken steps to consider what his RA was and decided whether amendments could be made to its service to accommodate it. Not doing so was fault. This caused Mr X frustration and distress. I have made a recommendation below to remedy this injustice.

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Agreed action

30. The Council has agreed to take the following action within four weeks of the date of my final decision:
1. apologise to Mr X for not sending him the written information he initially requested and not considering his RA;
2. review the wording on its website to be clearer in what type of photo and map evidence is required to make an insurance claim for vehicle damage;
3. share the Ombudsman’s report “Equal Access” with relevant senior managers in order to promote good practice; and
4. issue written reminders to relevant officers to ensure they understand their obligations under the Equality Act 2010 to provide reasonable adjustments.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman