The Ombudsman's final decision
Summary: there was fault by the Council in that it delayed in providing the complainant with an advocate. However, this did not cause him injustice as when the advocate was appointed he did not use them to assist him with his communication with the Council
The complaint
The complainant, whom I shall refer to as Mr B, complains about services provided to him by Buckinghamshire Council’s children’s services team during and after an assessment it completed related to his son. He says the Council failed to make reasonable adjustments related to his diagnoses of dyslexia and Attention Deficit Hyperactivity Disorder (ADHD) and thereby effectively restricted his participation in the social work assessment and his subsequent complaint. Specifically, he says it: delayed providing him with an advocate for the assessment and the complaints process until he was already at stage 2 of the complaints procedure; wrongly and unreasonably invoked its vexatious complainants policy; failed to give him adequate opportunity to respond to allegations made against him by his former partner which he considers constitutes gender discrimination; and failed to adhere to its own policies and relevant law on equalities.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I considered the written information Mr B provided with his complaint and discussed the complaint with him by telephone. I made written enquiries of the Council and considered all the information before reaching a draft decision on it.
Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened 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.
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. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. Disability and sex are two of these nine characteristics.
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 as close as it is reasonably possible to get to the standard usually offered to non-disabled people. 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.
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.
We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
A child is in need if: they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; their health or development is likely to be significantly impaired unless the council provides support; or they are disabled.
Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. This assessment is referred to differently by different councils but Buckinghamshire County council refers to this as a Child and Family Assessment. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children) When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.
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. The procedure is for children and young people who wish to complain about provision made by a children’s services department or to allow an appropriate person to complain on their behalf. It may also be used by others to make a complain in their own right. The complaint must be in relation to a child or young person.
The Council has a corporate complaints procedure which comprises two stages. If dissatisfied with the response at stage 1 the complainant may ask for the matter to be escalated to stage 2 for further consideration.
The Council has a published “Persistent or vexatious complaints policy”. This sets out how the Council deals with complainants who are abusive, persistent and/or vexatious. It confirms that if the Council considers a complainant has behaved in such a manner it may take a variety of actions including limiting the type of contact the complainant may have with the council, limiting the amount of contact, reading but not acknowledging new correspondence on a decided complaint unless new information is provided. The policy says that before taking such action where a complainant is known or suspected to have special needs it should consider offering an independent advocate to assist in the complainant’s communication with the Council.
What happened Relevant background Mr B is diagnosed with dyslexia. This was diagnosed several years ago and the Council confirms that Mr B provided it with a report which confirmed this diagnosis.
Mr B’s son, whom I shall refer to as A, lives mostly with his mother from whom Mr B is separated. Mr B has regular contact with A.
The Council confirms its children’s services team’s most recent period of involvement began in late 2020 as a result of a referral regarding Mr B’s son from his about his school attendance: he had not attended school for around a month.
After the Council became involved Mr B’s former partner made a number of allegations regarding Mr B’s behaviour towards A. This included that A had been anxious and reluctant to go home with his father when he collected him from school in late 2020. She also alleged that Mr B harassed her and had refused to agree to A returning to her care or give her a date when he would be returning to her care.
Events related to the complaint The Council completed a final Child and Family assessment in March 2021. The outcome of that assessment was to place A on a Child in Need Plan.
The March 2021 Child and Family Assessment notes that Mr B was dissatisfied with a previous assessment report issued around January 2021. I deal with this in more detail below. The March report states that the Council had asked Mr B to write to the Council outlining what he was dissatisfied with in the earlier assessment so that this could be recorded and included in the updated assessment. When he did not provide this the Council reminded Mr B to do so. Mr B then asked to provide his views verbally given his diagnosis of dyslexia. The social worker agreed to take his views in a telephone conversation. Mr B is noted to have said that he would only agree to this if he could record the call. The report states that the social worker told Mr B that he could dictate his comments on the inaccuracies in the report and the Council would type up a document detailing what he said. The report says that in response Mr B said he did not feel comfortable with that and that he would therefore “…withdraw from this process and will follow legal and complaint channels”. The report goes on to note that Mr B did not therefore participate in the updated assessment.
As I understand it the Council ended its involvement with A in November 2021.
Mr B’s complaint and his communications with the Council Complaint considered at stage 1 of the complaints procedure Mr B first complained to the Council in January 2021. He appears to have complained in a telephone call that the Council’s complaints team then summarised into a written complaint. This complaint related to his contact arrangements with A over the Christmas period, dissatisfaction with the high turnover of Council staff and unhappiness with communication with social work staff including for example, not having been told that a member of staff was leaving, a rushed meeting with a social worker and not being provided with a report when he should have been. He later added complaints about his dissatisfaction with the social work report stating it was biased on the grounds of race or gender. He also said that his dyslexia had not been considered.
The Council provided its response to this complaint in late February 2021. With regard to his complaint about bias in the social work assessment report this response stated Mr B had been asked to submit his comments and to correct any inaccurate information in it but had not yet done so. Regarding his complaint about his dyslexia having not been considered the Council said A’s social worker had invited Mr B to talk to her about how she could meet his communication needs because of his dyslexia. However, as I understand it, Mr B decided he was no longer wiling to engage with the social worker as he did not wish to engage with the child in need plan. It noted he communicated frequently in writing with Council staff by email.
The complaint considered at stage 2 Mr B was dissatisfied with the Council’s response to his complaint at stage 1 and decided to escalate the matter for consideration at stage 2 of the complaints procedure.
In early March 2021 the Council asked Mr B to stop sending large and frequent email communications to several Council employees on matters that were already the subject of the complaint that was being considered under the complaints procedure. The Council’s email to him of 3 March stated “The volume and frequency of your correspondence is currently hindering the Council’s ability to work effectively for A and other young people that require their help”. It went to ask him to only contact the Council on urgent matters related to A’s welfare and to not contact them about matters already the subject of the complaint already being considered or if he was restating a point he had already made. It went on to say “If the frequency of your communication does not improve, we will have to consider your inclusion on the persistent and vexatious complaints register”. It provided a link to that policy so Mr B could look at that. The Council asked Mr B to allow 3 to 5 working days for staff to provide a response to an email before he sent another. The email trail attached to that response shows that Mr B had sent three emails to the Council on 1 March, each copied to six email addresses at the Council, one on 2 March again copied to six email addresses and another two on 3 March copied again to six or seven different Council email addresses.
In April the Council arranged for one of its complaints team members to confirm Mr B’s stage 2 complaint details by phone. The complaints officer then emailed Mr B to agree a written stage 2 summary of his complaint. The officer asked Mr B to let them know how long he would need to consider this stating it was not imposing a time limit but that it wanted a date in order to keep track of the complaint on the Council’s database systems.
The Council agreed to find an advocate for Mr B in June when Mr B asked for this.
Shortly after, an advocate from an advocacy agency engaged by the Council on Mr B’s behalf called the Council to confirm that she was now Mr B’s advocate and that she had spoken to him.
Mr B provided his response to the written summary of the complaint in late July 2021. He sent this to the Council’s complaint email inbox and to his advocate. In the body of his email he says he does not believe the Council has followed its policy “Safeguarding Children Partnership – Procedures” in relation to children of parents with a learning difficulty or disability or regarding parenting capacity and mental illness. He reconfirmed his diagnosis of dyslexia and also said that he was suspected of also having ADHD. At the end of that email he said he needed support with his complaint and with what services he could access from the children’s services team.
The Council emailed Mr B and the advocate on 29 July. This was not a response to the email containing the complaint details but to a different email Mr B had sent on 21 July. In this email the Council again asked Mr B to stop emailing numerous Council officers and to deal with the complaints team on matters that were being considered under the complaints procedure. The Council again referred to the frequency and nature of Mr B’s contact and said that it may invoke its persistent and vexatious complaints policy. In response Mr B asked the Council to provide all the data it had used to reach its decision that it may invoke this. He chased this up twice in August when he did not receive a response. He then sent a further email in mid-August asking if he was subject to the persistent and vexatious complaints policy and asked a number of further questions including about information included in the social work assessment.
The Council’s complaints officer replied shortly after to say she had been away and apologised for the delay in responding. She confirmed Mr B was not subject to the persistent and vexatious complaints procedure. She said she would be dealing with the stage 2 complaint but was still waiting for him to confirm the complaint as she had summarised it in April. Again the Council copied this correspondence to Mr B’s advocate.
In September the Council sent a revised draft of the complaint to the advocate. Mr B then discussed this with the advocate in late October but wanted more detail in the complaint to be investigated.
In October 2021 the Council’s complaints team emailed Mr B. In its email confirmed it was paying for Mr B’s advocate and that the advocate was available to provide him with support with his complaint but also other dealings with the children’s services team. The Council said that the advocate had already attended a meeting with Mr B and the children’s services team. She said the Council would continue to provide the advocate for as long as Mr B needed the service. The Council again asked Mr B to confirm the stage 2 complaint summary issued in April and advised him to discuss this with the advocate. The Council asked him to do this by mid-November and said that it would close the complaint if he did not do so by then. The Council also provided Mr B with a single officer to use as a point of contact in the children’s services team to deal with matters related to the child in need service. The Council said this officer would provide Mr B with an update by telephone once every four weeks and encouraged him to include the advocate in these discussions.
The Council says that in mid-November Mr B produced a complaint that he said was not complete but already amounted to 36 pages. He said he needed more time to complete it. He had written this himself and copied it to his advocate. The Council says Mr B produced a final version in January 2022. The Council had already expressed concerns at the length of the complaint but after submitting the final version in January Mr B then wanted to add further points to it. The Council advised Mr B to speak to his advocate and submit the further matters as a new and separate complaint.
At some point (I am not clear when as the document is noted dated) Mr B provided a 24 page document detailing “errors and concerns” in the social work Child and Family Assessment. The Council confirms this document has been added to A’s children’s services file.
The Council provided its response to the stage 2 complaint in April 2022. In this response the Council said: whilst noting the social worker had offered to read the social work report to Mr B in early 2021 it accepted that Mr B should have been given more time to consider the first written assessment to accommodate Mr B’s needs related to his dyslexia. The Council apologised for this. The stage 2 decision also noted that Mr B had asked to record the proposed read out of the report and subsequent discussion but accepted this should only be done with the consent of those attending. The Council said that the social work staff were not agreeable to the call being recorded so did not give consent and that it was their right to do so; the Council noted that Mr B had accused social workers of making discriminatory comments during telephone calls so the council decided that communications should be completed in writing. The Council referred to Mr B’s dyslexia assessment report which stated that Mr B had difficulty processing orally presented material but was able to use technological aids to use written communication so felt written communication was acceptable assuming use of these technological aids. The Council also pointed out that Mr B chose to communicate with the Council in frequent lengthy and complex written form and that he copied his sister into these communications meaning there was an individual involved of his choice and who the Council assumed was therefore providing him with support on this. The Council went on, however, to accept it delayed in finding an advocate at stage 2 complaint. The Council said it did not consider one was necessary at stage 1 as the process it used then appeared to work well – that a council officer discussed the complaint with him and then followed up with an email. However, it said that at stage 2 one was needed but that this was delayed as the usual advocacy agency the Council used could not work with Mr B given where he lived so they had to source a different provider which took some additional time; the Council accepted that its persistent or vexatious complaints policy states that the Council should consider appointing an advocate to help a complainant with special needs. It clarified this did not mean the Council should not invoke the policy where a complainant has special needs but that it should consider providing advocacy support before reaching any decision to invoke it. The officer did not consider the threat of this in late July was inappropriate because Mr B had continued to send in large quantities of information and frequently even after the advocate was in place from July; regarding Mr B’s dissatisfaction with the first social work assessment, the Council accepted it should have given Mr B the required time to consider the assessment. However, the Council also noted that the social worker did offer to read the assessment with him and take Mr B’s comments verbally but this was not accepted by Mr B; overall the Council accepted that Mr B should have been given the proper amount of time to review the assessment and had not been, and it should have provided an advocate sooner. However it also concluded that Mr B had not used the advocate consistently after she was appointed, had continued to provide long, frequent emails directed at numerous officials. The Council did not uphold the complaint that Council had not provided sufficient support to enable effective communication between Mr B and the Council and said there was no evidence of discrimination on the grounds of gender.
The officer who considered the stage 2 complaint confirmed that Mr B’s letter with comments and corrections on the assessment was received in June 2021 and confirmed that it had been added to A’s file.
Stage 2 complaint partially upheld but did not accept that Council had failed to make reasonable adjustments in accordance with the Equality Act 2010.
The Council says it did not consider Mr B’s complaint under the children’s statutory complaints procedure as it related to the way in which the children’s services team had dealt with him (Mr B) rather than about services provided to his son. It was also about reasonable adjustments. So the Council says it did not qualify for consideration under the statutory procedure.
Was the Council at fault and did this cause injustice?
Complaint a) the Council delayed providing an advocate for the assessment and the complaints process until he was already at stage 2 of the complaints procedure The Council has already accepted that it did not provide Mr B with an advocate as quickly as it should have at stage 2 of the complaints investigation. It says it took the Council longer to arrange this than it would have done ordinarily as Mr B lives in a different Council area so it had to identify a different advocacy provider.
The Council argues that at the earlier stages of its involvement Mr B appeared to be being supported by a relative so it believed he was receiving an appropriate amount of support then. The Council says that Mr B asked the Council to copy its emails to Mr B’s relative and this was why it believed the relative was providing him with support.
The Council says that during the period it was providing support to A as a child in need under section 17 Mr B disengaged stating he would not work with the children’s social care team.
The Council’s duty under the Equality Act 2010 is ‘anticipatory’ and service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. As I have said above it is not my role to decide whether the Council has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. Mr B made it clear in January 2021 that he needed assistance and the Council’s social worker offered to meet with him to discuss the needs around his dyslexia then which he refused. I find no fault by the Council in this. However, he then asked to record the call in order to assist with his needs related to his dyslexia which the Council refused. I consider the Council could have at that point considered whether there was an alternative way to present the report, for example by sending him a voice recording of it. I consider this was a missed opportunity to consider his needs even though his relative was believed to be assisting him at that time as he had asked for more assistance with the report.
Had he taken up the social worker’s offer to discuss Mr B’s needs related to his dyslexia with him in January, he could potentially have had advocacy support from that time. He did not. The Council says there was no suggestion that he was struggling to manage the written correspondence relating to his stage 1 complaint which was also submitted in January. This fact combined with the rejection of the social worker’s offer then does not persuade me the Council was at fault in further considering his needs at that time.
The Council has already accepted that it should have considered an advocate before finding one in June and I agree with this. Given the concerns about the volume and nature of his written communications seemingly from March I consider the Council should have revisited consideration of its duty under the Equality Act then and consider its failure to do so until June amounts to fault.
However, it seems clear that once an advocate he did not use them to assist him and only copied the advocate into his communication. There are therefore no grounds for me to conclude that the delay in providing an advocate caused Mr B injustice.
Complaint b) the Council wrongly and unreasonably invoked its vexatious complainants policy The Council says it has not invoked its Persistent and vexatious complainants policy with regard to Mr B. It says it warned him it may do so on a number of occasions if he did not reduce the frequency of his emails to large numbers of Council staff. It says these emails often repeated issues it was already addressing and they hindered staff’s “ability to work effectively”. The Council says it confirmed to Mr B in July 2022 confirmed to him that he was not subject to the Council’s Persistent and Vexatious complaints register.
As the procedure was not invoked I find no fault on this complaint. Given the conclusion I have reached above it is possible that if the Council had put in place an advocate earlier on this may have meant that Mr B did not send in the volume and frequent communications that led the Council to say it may invoke this procedure. However, I cannot conclude this with any certainty for the same reason that I have found no injustice caused by the delay in putting an advocate in place: Mr B did not use the advocate to assist in his communication with the Council even after one was appointed.
Complaint c) the Council failed to give Mr B adequate opportunity to respond to allegations made against him by his former partner. He considers this constitutes gender discrimination This appears to relate to the children and family assessment completed in March 2021. The Council’s evidence is that the social worker did offer Mr B the opportunity to point out what he disagreed with in that report. When he produced a written document detailing his it was added to A’s case file in June 2022.
There is no evidence that would persuade me the Council was at fault in relation to this part of Mr B’s complaint.
Complaint d) the Council failed to adhere to its own policies and relevant law on equalities The Council has accepted that Mr B should have been given more time to consider the original assessment report to take account of his needs related to his dyslexia. The Council apologised for this in the letter it sent at stage 2 of the complaints process. The Council also accepts it delayed in finding Mr B an advocate earlier that it did at stage 2 of the complaints procedure but did have one in place by the time it was agreeing the statement of complaint with Mr B at stage 2.
I have already addressed this issue in some depth in paragraphs 42 to 48 above so will not repeat this here. There is some fault as detailed in those paragraphs. Again, as Mr B did not use the advocate when one was allocated I have no grounds to conclude the fault caused him injustice.
I make no recommendation for a remedy for Mr B as the Council has already apologised and I have found the fault caused him no injustice.
Final decision
There was fault by the Council in that it delayed in providing him with an advocate. However, this did not cause him injustice as when the advocate was appointed he did not use them to assist him.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman