Summary: Ms X complains the Council has not provided suitable support and adjustments for her and her family’s needs. This has meant they have not received the right support and have not been able to complain. The Ombudsman finds fault with the Council for failing to consider Ms X’s complaints under the statutory complaints process. The Ombudsman also finds fault with the Council for failing to suitably consider requests for reasonable adjustments and failing to have due regard to its duty under the Equality Act 2010. The Council has agreed to make a financial payment and service remedies.

The complaint

1. Ms X complains the Council has not suitably considered her complaints and the concerns she has raised to the Council about its actions towards her and her grandchildren. Ms X says the Council has timed out her complaints to avoid addressing her concerns and therefore avoided taking any action.
2. Ms X complains the Council has dismissed her and her family’s diagnosis of autism, and has continually dismissed professional reports providing full proof of their diagnosed disability.
3. Ms X complains the Council has not provided any reasonable adjustments to support her and her grandchildren to access Council services, therefore not adhering to the ‘Equality Act 2010. This also means there is no fair access to services for her or other service users.
4. Miss X complains her family have been refused information in a format they understand, refused requests for reasonable adjustments in meetings, and refused quieter venues for contact. This also includes refusing to allow her granddaughter an advocate for her autism.
5. Ms X also complains that by refusing to provide reasonable adjustments to her and her family, the Council failing to consider her rights under the Human Rights Act.
6. Ms X complains that the Council’s decision to dismiss her and her family’s diagnosis of autism and not give reasonable adjustments means the quality of the contact she has with her grandchildren is detrimental and causes anxiety for all attending. The refusal by the Council to abide by laws and policies has impacted her wellbeing, her relationship with her grandchildren and their ongoing contact.
7. Ms X complains the Council refuses to adhere to the ‘Autism Strategy’, by not training staff in ‘recognising autism’ and ‘knowing how to support persons with autism’. Miss X complains the Council refuses to work with the NHS and other groups to ensure that appropriate support is in place when it is identified that a ‘service user’ has autism.
8. Ms X also complains that the Council has continued to insist that any ‘traits’ of autism presented in Ms X, or her family, are forms of ‘mental illness’ and FII, and that meltdowns within children are simply ‘bad behaviour’. Miss X complains this means the Council has dismissed its ‘duty’ under section 2 of the ‘Care Act 2014’, which places a duty on local authorities to ‘Promote individual well-being’.
9. Ms X complains the Council allowed an ‘alleged’ independent, single assessment to be altered by a foster care manager, whereby this assessment was subsequently dismissed but is still used against her by the Council.
10. Ms X complains the Council fabricated a claim of ‘drug activity’ at Ms X’s home and then proceeded to submit a false report of ‘assault by beating’, by Ms X, to the West Yorkshire Police.
11. Ms X complains the Council provided false information about her to the Disclosure and Barring Service.

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The Ombudsman’s role and powers

12. 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)
13. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
14. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal or court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or go to court. (Local Government Act 1974, section 26(6)(a)(c), as amended)
15. 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

16. I considered Ms X’s complaint and information she provided. I also considered information from the Council, the Equality Act 2010 and legislation for the statutory complaints process. I invited Ms X and the Council to comment on my draft decision and considered the comments received.
17. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Equality Act

18. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include people with disabilities.
19. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable it must make them.
20. The Act is supported by a Code of Practice, which is statutory guidance. This means public bodies must have regard to it.
21. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010.
22. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

The statutory complains procedure

23. 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.
24. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
25. 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.
26. 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.

What happened

27. Ms X has a diagnosis of autism. Ms X was previously the carer and guardian for her granddaughter, who she also has a diagnosis of autism.
28. Ms X’s granddaughter was removed from her care by the Council.
29. Ms X complained to the Council that her granddaughter was not receiving suitable support for her autism whilst under the care of the Council.
30. Ms X said the Council was failing to provide her granddaughter with appropriate support and reasonable adjustments, and this was impacted her wellbeing.
31. Ms X also complained the Council was failing to provide reasonable adjustments for her own autism, and was failing to respond to her concerns and complaints. Ms X felt the Council was gatekeeping its complaints procedures from her because of her autism, and this meant she could not raise concerns for the welfare of her grandchild.
32. The Council responded several times to Ms X over a period of years. Several times it asked Ms X to agree terms of the complaint before it would progress to considering her complaints under the complaints process. On other occasions, it provided a stage one response.
33. Ms X told the Council that her autism meant that she needed adjustments to help her navigate the complaints procedure.
34. Ms X was unhappy with the handling of the concerns raised and with the Council for not considering her complaints. She complained to the Ombudsman.
35. During my investigation, I asked the Council provide me with information about Ms X’s case. The Council said it still had open complaints for Ms X. It advised there had been similar complaints over several years.

Analysis

Statutory complaints process

36. Under the legislation for statutory complaints process, Council’s must consider complaints about certain issues. This includes where a parent or guardian with a reasonable interest in the welfare of a child can complain about the Council’s actions.
37. Ms X complained to the Council on several occasions with concerns that her granddaughter was not receiving the right support and reasonable adjustments from the Council for her autism.
38. Ms X raised this concern multiple times with the Council over several years. The Council considered some of the complaints under stage one. On other occasions the Council asked Ms X to agree terms of complaint before it would investigate the complaint, or advised the complaint was over 12 months old.
39. Council’s are best placed to investigate complaints and resolve issues, and the Ombudsman cannot investigate where the Council has not had the opportunity to fully investigate.
40. However, Council’s cannot refuse to consider complaints under the statutory complaints process to avoid carrying out its duty under the process. Council’s must consider relevant complaints under the process and the Ombudsman will not accept Council’s failing to do carry out this duty.
41. In this case, Ms X was the previous guardian for her granddaughter and I therefore accept that she has a vested interest in her granddaughters wellbeing. The complaints and concerns that Ms X raised were eligible to be considered under the statutory complaints process. The complaints and concerned she raised should have been considered by the Council under the statutory complaints procedure, and failure to do so was fault by the Council.
42. The Council does not need to agree a terms of complaint to progress a complaint, and this reasoning should not have been used to justify the Council failing to follow its duty. This has meant that Ms X has not been given the opportunity to have an independent investigation of her concerns.
43. The Council has said that it did not consider Ms X’s complaint under the statutory complaints process because it was considering the various complaints under several complaints processes. Council’s have the discretion to consider multiple complaints under the statutory process, and guidance is clear that complainants should not be disadvantaged by doing this. In this case, it is my view the Council did not reasonably consider exercising discretion to consider all of Ms X’s complaints under the statutory process.
44. The Council has been able to recognise that Ms X was complaining of similar issues repeatedly and was struggling to progress her complaint. It is my view that the Council should have progressed Ms X’s complaint through the statutory complaint’s procedure.
45. This has caused Ms X significant injustice and has repeatedly delayed investigating and exploring her concerns. Causing her distress and uncertainty.

Equality Act 2010 and reasonable adjustments

46. The Council said that it could not progress Ms X’s complaints as it could not agree terms of complaint with Ms X.
47. Ms X communicated with the Council about the reasonable adjustments she needed for her autism. This included clear communication, with short sentences and bullet points, as well as extra time to process and respond to correspondence. She asked the Council communicate with her in writing, and advised that she becomes overwhelmed with large amounts of information.
48. I have reviewed the correspondence with Ms X and the Council. While the Council did provide Ms X with an advocate and a single point of contact, the correspondence between Ms X and the Council was often lengthy and not concise. At times, although Ms X had requested communication in writing, multiple phone calls from different officers were made to Ms X. She was also told multiple times that different parts of her complaints need to be dealt with by different officers and other departments. She received continuing correspondence from different officers.
49. The Council said that different officers spoke to Ms X because she would contact them to discuss her complaints. It also said that as Ms X was complaining about different things, her complaints needed to go through multiple complaints processes and therefore different officers would be responding to her.
50. The Equality Act 2010 says that Council’s should provide reasonable adjustments where suitable. If the Council was not able to provide Ms X with the requested reasonable adjustments, it should have told her this and explained its reasoning why. In this case, I have seen no evidence of the Council’s consideration of the reasonable adjustments requested by Ms X.
51. It is my view that by failing to consider suitable reasonable adjustments, the Council has failed to have due regard to its duty to the Equality Act 2010. The impact of this has been that Ms X has been gatekept from engaging with the complaints process fully, and has not been given adequate opportunities and format to discuss her concerns.
52. I accept that Ms X found the complaints process incredibly difficult and hard to fully engage with. As a result she could not progress her complaint to the next stage or agree the terms of reference with the Council.
53. It is my view Council staff handling the complaints did not understand how to communicate with Ms X and consider the reasonable adjustments she requested. This was fault by the Council and has caused Ms X further significant injustice.

Agreed action

54. Within 4 weeks of my final decision the Council has agreed to

• Write to Ms X and apologise for the fault identified
• Pay Ms X £500 in recognition of the distress caused
• Start the process for considering Ms X’s complaint under the statutory complaints process.

55. Within 12 weeks of my final decision the Council has agreed to

• Review how it ensures all suitable complaints are considered under the statutory complaints process.
• Review how it manages complaints were reasonable adjustments are requested.
• Provide information and training to staff about how to respond and communicate with complainants where reasonable adjustments are requested.
• Identify any other complaints where reasonable adjustments may have been requested and not suitable considered or a reason for consideration has not been given.

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Final decision

56. I have now completed my investigation. I find fault with the Council for failing to consider Ms X’s complaints under the statutory complaints process. I also find fault with the Council for failing to have due regard to its duty under the Equality Act 2010.

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Parts of the complaint that I did not investigate

57. A significant part of Ms X’s complaint is about the care and treatment of herself and her granddaughter by the Council. I have not investigated these parts of Ms X’s complaint as they will need to first be investigated by the Council under the statutory complaints process.
58. If Ms X remains unhappy after the complaints process, she can bring her complaint back to the Ombudsman for further consideration.

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Investigator's decision on behalf of the Ombudsman