Summary: Ms X complained about the way the Council handled a penalty charge notice and her appeal. She complained the Council refused to allow her to complain over the phone, which breached its equality duty, and it responded to her complaint poorly. Ms X said this caused physical pain due to her disabilities because she had to put her complaint in writing. We find the Council at fault, and this caused Ms X injustice. We are satisfied that the Council has already apologised. The Council has agreed to make a payment to Ms X to reflect the injustice, and make improvements to its service.

The complaint

1. The complainant, who I refer to here as Ms X, complained about the way the Council handled a penalty charge notice and her appeal. She complained the Council refused to allow her to complain over the phone, and responded to her complaint poorly. She said the Council breached its public sector equality duty.
2. Ms X said the stress impacted on her mental health, and she was caused physical pain due to her disabilities because she had to put her complaint in writing. She also said the penalty charge notice and appeal cost her money.

Back to top

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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)

Back to top

What I have and have not investigated

7. Ms X complained about the way the Council handled a penalty charge notice and her appeal. As I have set out above, we cannot investigate a complaint if the person has appealed to a tribunal about the matter.
8. In this case, Ms X appealed the penalty charge notice. So, the penalty charge notice and the subsequent appeal are outside the Ombudsman’s jurisdiction. For this reason, I have not investigated this part of Ms X’s complaint.
9. I have investigated the other parts of Ms X’s complaint.

Back to top

How I considered this complaint

10. I considered the information, documents, and call recording provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
11. I considered the relevant legislation and policies, set out below. I considered the Ombudsman’s published focus reports: ‘Equal Justice: learning lessons from complaints about people’s human rights’ (December 2022), and ‘Equal access: Getting it right for people with disabilities’ (May 2022). I also considered the Ombudsman’s published guidance on remedies (updated).

Back to top

What I found

What should have happened

The Council’s corporate complaints procedure

12. The Council’s complaints procedure says it will make “reasonable adjustments or changes for disabled people, neurodiverse people or people with long-term health conditions”.
13. It also says the Council accepts complaints “in a variety of different formats, including, e-form, telephone, letter, email and in person”.

Reasonable Adjustments

14. 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 person with disabilities can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
15. 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.
16. 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.

Public Sector Equality Duty

17. 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; and,
• advance equality of opportunity between people who share a protected characteristic and those who do not.
18. ‘Protected characteristics' referred to in the Equality Act 2010 include disabilities.
19. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to have due regard to its duties under the Equality Act.

What happened

20. The Council issued Ms X with a penalty charge notice (PCN) and a charge certificate (CC). Ms X appealed the PCN at tribunal. While waiting for the tribunal to adjudicate her appeal, Ms X made at least three phone calls to the Council about how it issued the PCN and the CC.
21. In the first phone call, Ms X said she had already appealed the PCN and wanted to “take it further”. She explained that she has disabilities which mean it is difficult and painful for her to write or type.
22. In the second phone call, Ms X explained her disabilities. She asked for the name of the head of the parking operations department. The officer told Ms X that she had to put her request in writing.
23. In the third phone call, Ms X said she had written a complaint letter and wanted to make a complaint. She asked which address to send her complaint to. The officer advised her to send it to an address in a different county (not the Council’s address, where written complaints should be sent to).
24. In September 2022, Ms X complained to the Council in writing.
25. The Council’s stage one complaint response addressed one part of Ms X’s complaint. The officer who wrote the response said they had passed her other complaints – about how the Council had handled her phone calls – to managers for them to investigate and respond separately.
26. The Council’s stage two complaint response agreed that the stage one response was not satisfactory. It agreed that the stage one response should have addressed all of Ms X’s points of complaint. It said the responding officer at stage one passed the remaining complaints to call centre managers but this was not monitored by the complaints process. So, there was no record of the Council responding to those points of complaint. The Council apologised for this.
27. The Council said it should have given Ms X an opportunity to make her corporate complaint by phone. It apologised if Ms X was left with the impression that she had to put her complaint in writing, as she had to with her PCN appeal.
28. The Council said it should have been more informative in its phone calls with Ms X. It accepted that it did not properly advise Ms X of her options when making a corporate complaint. It apologised for the failings in its phone calls with her, and for the advice it gave her.
29. Ms X then brought her complaint to the Ombudsman.

Analysis

Complaint over the phone

30. Ms X complained the Council refused to allow her to make a complaint over the phone. She said the Council breached its public sector equality duty.
31. I have listened to recordings of three phone calls Ms X made to the Council about the penalty charge notice (PCN).
32. In the first call, it is not clear that Ms X wanted to make a complaint. The officer offered to help Ms X submit her PCN appeal over the phone rather than having to write it (this is good practice). Ms X said she had already appealed.
33. In the second call, Ms X did not explicitly say she wanted to make a complaint. However, I find the officer could have asked Ms X if she wanted to make a complaint given what she said during the call.
34. In the third call, Ms X said she had written a complaint letter, wanted to make a complaint to the parking operations department, and asked for the address to send her complaint to. The officer told Ms X to send her complaint to an address outside the area. I find the address he gave Ms X was not the correct address to send a complaint to, because it was not the Council’s address. The Council’s website gives its address to send written complaints to, and this was not the address the officer gave Ms X.
35. The Council’s stage two complaint response accepts that it should have been more informative in its phone calls with Ms X, and should have given her the opportunity to make a complaint by phone. Having listened to the calls, I agree. The Council accepted it was at fault for not properly advising Ms X of her options for making a corporate complaint, and apologised.
36. I find the Council at fault for failing to give Ms X the opportunity to make her complaint by phone, and for failing to properly advise her of the different ways she could make her complaint.
37. I find this fault caused Ms X injustice in that it caused her unnecessary and avoidable distress, inconvenience, and frustration. Also, I find that this placed Ms X at a substantial disadvantage to someone without a disability who wanted to pursue a complaint.
38. The Ombudsman’s focus report, ‘Equal Justice: learning lessons from complaints about people’s human rights’ (December 2022), says:

“Councils should consider people’s rights as part of dealing with complaints … In the same way some people need extra help to access council services, some will need extra help communicating with councils to allow them to give feedback or raise a complaint.”

39. The Ombudsman’s focus report, ‘Equal access: Getting it right for people with disabilities’ (May 2022), says:

“Dealing with complaints is a key frontline service and so local services should pay particular attention to ensuring complaints processes are accessible for everyone who might use their services.”

40. Given the reasons I find fault here, I further find that the Council failed to have due regard to its duties under the Equality Act.

Complaint response

41. Ms X complained the Council responded to her complaint poorly.
42. The Council’s stage two complaint response accepts that its stage one response was not satisfactory, and that it should have addressed all of Ms X’s points of complaint. The Council apologised for this, and the officer involved at stage one has subsequently completed relevant training.
43. I agree with the Council’s stage two response about the inadequacy of its stage one response. I find the Council at fault for failing to properly respond to Ms X’s complaint at stage one.
44. I find this fault caused Ms X injustice in that it caused unnecessary and avoidable frustration.

Back to top

Agreed action

45. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £100. This is to remedy the injustice caused by failing to give her the opportunity to make a complaint by phone, and the injustice caused by the inadequate stage one complaint response.
46. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I consider this amount is appropriate and proportionate to the injustice caused.
47. I am satisfied that the Council has apologised to Ms X for the injustice caused by the faults.
48. Within three months of this decision, the Council has agreed to remind staff in its call centre(s) that:
1. they should signpost people to the corporate complaints procedure if they think the service user might have a complaint;
2. they should ask if that service user needs any reasonable adjustments in order to make their complaint; and,
3. that the Council’s equality duty is anticipatory: staff should not wait for the person to ask for a reasonable adjustment.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

50. I have completed my investigation. I find the Council at fault, and this caused Ms X injustice. I am satisfied the Council has apologised, but the Council has agreed to further remedy the injustice by making a payment to Ms X and improving its service.

Back to top

Investigator's decision on behalf of the Ombudsman