Summary: We have upheld a complaint from ‘Mr and Mrs C’, finding the Council should not have referred to a policy on managing ‘inappropriate complainant behaviour’ when writing to them. This action caused unnecessary distress and unfairly restricted their ability to contact the Council. The Council accepts these findings and at the end of this statement, we explain the action it has agreed to take to remedy this injustice.

The complaint

1. I have called the complainants ‘Mr and Mrs C’. They complain the Council inappropriately referred to its policy on managing inappropriate complainant behaviour, when replying to correspondence they sent it about air pollution from wood burning. The letter said the Council would no longer communicate with them about issues “raised in respect of wood burning at your neighbour’s property”. The letter also referred to the Council not responding if they raised “related pollution policy issues” around wood burning or “similar matters”.
2. Mr and Mrs C say the Council failed to follow its policy before imposing this limit on their contact, which they consider unfair and disproportionate. They say it has caused them unnecessary distress.

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The Ombudsman’s role and powers

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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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

6. Before issuing this decision statement I considered:

• Mr and Mrs C’s written complaint and any supporting information they provided;
• correspondence exchanged between Mr and Mrs C and the Council pre-dating the investigation;
• comments and further documents provided to us by the Council in reply to enquiries;
• relevant Council policy and Ombudsman guidance as referred to in the text below.

7. I gave Mr and Mrs C and the Council an opportunity to comment on two draft versions of this decision statement. I took account of any comments they made before deciding to complete my investigation and issue this final decision statement.

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What I found

Background to the complaint

8. Mr and Mrs C’s complaint focuses on a letter sent to them by the Council’s Executive Director in January 2023. This replied to a letter they sent to the Council in December 2022, which raised the following matters:

• Mr and Mrs C wanted to know when all the Council’s area would become a smoke controlled area and if there would be public consultation on this;
• they wanted clarification of statements made in an earlier letter from a senior environmental health officer. He had commented on data Mr and Mrs C collected about particulate matter entering their home from a neighbour’s wood burning stove. Mr and Mrs C challenged some of the statements made by the officer;
• they considered the Council had not said why it thought it “reasonable” for their neighbour’s stove to emit smoke into their property. They suggested the Council could informally to ask their neighbour to change his practice even if it considered it could not take formal action;
• they expressed dissatisfaction the Council would not adopt World Health Organisation guidelines on air quality limits. They suggested the Council should encourage education and give advice on the dangers of pollution from wood smoke;
• they said the Council should join a campaign by Hertfordshire County Council called ‘Let’s Clear the Air’ through placing articles in a magazine it publishes or on social media;
• they were unhappy with a delay in the Council publishing statistical data on air quality for 2020 and 2021.

9. The Executive Director’s letter provided a response on each point. But it also referred to previous correspondence from Mr and Mrs C, going back several years when Mr and Mrs C first contacted it about the impact of their neighbour’s wood burning stove. The Council had investigated then if the wood stove caused a ‘statutory nuisance’ under the Environment Protection Act 1990 – this being a nuisance that:

• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; and / or
• one that injures health or is likely to injure health.

10. That investigation, which followed multiple visits to Mr and Mrs C’s home, found no statutory nuisance. However, Mr and Mrs C say that they were told during visits about the Council’s powers to introduce smoke control areas (which do not prevent the use of wood burning stoves) and its ability to publicise the harms of wood smoke.
11. Afterwards Mr and Mrs C had continued to complain about the impact of the wood burning stove. A few years later the Council carried out another more limited investigation, which included a single visit and again found no statutory nuisance.
12. The Executive Director’s letter explained the Council considered it had done all it could to deal with Mr and Mrs C’s correspondence. It said the Council had reached a point where it could add no more. It did not wish to continue the correspondence.
13. The Council said that it would deal with any future correspondence they sent “on this matter, or similar matters” under its ‘unreasonable complainants policy’. This was a reference to its policy for ‘the management of inappropriate complainant behaviour’. The letter said the decision “applies on an ongoing basis to the issues you have raised in respect of wood burning at your neighbour’s property and the related pollution policy issues related to that wood burning”.

Mr and Mrs C’s complaint

14. Mr and Mrs C have not asked us to investigate the Council’s response to their concerns about the impact of their neighbour’s wood burning. They say they do not want the Council’s to undertake any further investigation into statutory nuisance. But they want us to investigate the letter sent to them in January 2023. Specifically, the Council’s reference to its policy for managing inappropriate complainant behaviour. Having familiarised themselves with the policy, Mr and Mrs C say the Council is at fault, because:

• it gave no warning to them that it may invoke this policy;
• it did not give them a copy of the policy which was also not on the Council’s website at the time;
• it set no time limit on how long the sanction applied;
• nor that it would review the sanction;
• the sanction was vague; it was unfair to prevent them having no communication on the “serious issue of air pollution and council policy”;
• it would prevent them reporting any nuisance from smoke in the future;
• it ignored the evidence they provided of smoke pollution in the area and Government guidance and scientific evidence of the harm caused by wood smoke;
• it continued to rely on “misinformation” not supported by legislation;
• it cited a flawed investigation conducted several years ago;
• it conflated their concerns about the impact of wood smoke from their neighbour’s stove with their comments on wider Council policy.

The Council’s response

15. We asked the Council to comment. I summarise those comments as follows:

• that it had given a warning to Mr and Mrs C. In March 2022 it wrote to them saying that if they raised “substantively the same complaint you will receive substantively the same response”. Its letter had said: “The Council has a finite resource and will not enter into a protracted correspondence on this matter when you have already received a reasonable response on more than one occasion on this set of issues the Council has been consistent in its position”;
• it also says the letter of January 2023 was itself a further warning to Mr and Mrs C as it referred to how it would approach any future correspondence they sent;
• that it saw no purpose in reviewing its position given it had never found evidence of statutory nuisance;
• that Mr and Mrs C had engaged in a “clear pattern of attritional behaviour” over time engaging in ‘back and forth’ correspondence about largely similar matters;
• that its actions only applied to correspondence about “the substance of the wood burning complaint (and related policy)”. The Council had told Mr and Mrs C it would deal with any other matters they raised.

16. The Council recognised not sending Mr and Mrs C a copy of the relevant policy in January 2023. It apologised for this oversight. It said a copy of the policy was now on its website.
17. In further comments in response to a draft of this decision the Council also said that its letter of January 2023 was not seeking to impose a blanket ban on the complainants corresponding about air pollution. Indeed, it had specifically said in the January 2023 letter that if it began consulting on making the whole of the Council’s area a smoke control zone that it would “ensure” the complainants became aware of that.

My investigation

The Council’s policy

18. I have begun by considering the content of the Council’s policy on managing unreasonable complainant behaviour. This says the purpose of the policy is to address instances where complainants’ contacts cause “significant resource issues” for the Council. The Council can use it in various circumstances including after completing its reply to a complaint.
19. The Council provides a list of behaviours which may engage the policy. I consider of most relevance here are those behaviours described as making:

• “an unreasonable level of contacts”;
• “making the same complaint repeatedly”;
• “refusing to accept the outcome of the complaint process”; or
• “persistently approaching the Council through different routes about the same issue”.

20. The policy says a warning will be given before the policy is used.
21. When it is used the Customer Services Operations Manager will “inform the complainant in writing of what procedures have been put in place and for what period”.
22. The policy says the Council might write to a complainant and tell them “we will not reply to or acknowledge any further contact from them on the specific topic of that complaint (in this case, a designated member of staff should be identified who will read future correspondence)”.
23. Elsewhere the policy says the Head of Customer Services will review “the status of any complainant judged to be unreasonable / unreasonably persistent” every three months for the duration of any sanction imposed.
24. The policy also says “any restriction that is imposed on the complainant’s contact with us will be appropriate and proportionate and the complainant will be advised of the period of time the restriction will be in place for. In most cases restrictions might be deemed necessary to remain in place for between 3 and 6 months but there may be cases where it is necessary for the period to be extended. In such cases the restrictions would be reviewed on a quarterly basis.”
25. The policy says it will tell those affected by the policy of the reasons for the decision, “the duration of the action”, “the review process of this policy” and rights of appeal. It will also enclose a copy of the policy.
26. The Council says that the “appropriate service head / manager” will retain “adequate records […] of the details of the case and the action that has been taken”. The policy also refers to the Head of Customer Services retaining certain records.

My findings

27. We recognise there are times when the Council will want to ‘draw a line’ under correspondence it has with someone. This is where it considers it has answered that correspondence and exhausted its complaint procedure. It will consider there is no more it can usefully add.
28. We also recognise repeated correspondence about the same matter might be ‘unreasonable complainant behaviour’. We publish guidance on our website encouraging councils to have policies to manage this. This is because we recognise such behaviour can cause “significant resource issues for organisations”.
29. It follows from this that I find no fault in the Council having a policy that covers unreasonably persistent behaviour.
30. I also find no fault in the terms of the policy the Council has here.
31. This complaint therefore hinges on the Council’s use of the policy in its letter of January 2023 to Mr and Mrs C.
32. I have identified five key departures from the policy:

• First, the Council did not give any warning that it might use this policy to stop correspondence. I accept the Council had earlier told Mr and Mrs C it did not want to engage in repetitive correspondence, but it did not refer to its policy specifically.
• Second, the decision to refer to the policy came from its Executive Director and not its Customer Services Operations Manager.
• Third, the decision contained no detail for how long Mr and Mrs C could not contact the Council about wood burning at their neighbour’s property and ‘related pollution policy issues’.
• Fourth, neither did the decision explain if the Council would review this sanction (the Council confirms it did not intend to review it).
• Fifth, a copy of the policy was not given to Mr and Mrs C.

33. A policy does not carry the same weight as law. So, there may be occasions when the Council has good reason to depart from it. In this instance the Council has said its policy would be ‘unworkable’ if every decision had to come from its Customer Services Operation Manager, given they may have periods of absence. It points out the Executive Director’s position is the more senior. I accept this. And while the policy may benefit from making clear that other senior officers can make decisions under it, I do not think the fact the letter to Mr and Mrs C came from the Executive Director justifies a finding of fault.
34. But I consider the other departures above do justify a finding of fault.
35. I note the Council has sought to argue that its letter was only a warning of potential use of the policy, and not an application of the policy. However, I do not accept this. Had the letter said the Council may consider whether to invoke the policy in future, were Mr and Mrs C to write in again about their neighbour’s wood stove or relate policy matters, and left it at that, then I would accept it was a ‘warning’. But the letter did not stop at that point.
36. Instead, it said its correspondence marked the “end of the matter” and this “applies on an ongoing basis”. I consider these statements make clear the Council had already decided what approach it would take to any further correspondence from Mr and Mrs C. Also, it offered Mr and Mrs C a review of the decision. The Council policy does not suggest a warning to consider the potential application of the managing unreasonable complainant behaviour policy carries a right of review – only a decision made under that policy. So, I do not consider anyone reading the letter content could come to any other view than the Council did not want Mr and Mrs C writing to it again about these matters and had imposed a sanction accordingly.
37. In which case it was relevant for the Council to say how long this applied for and when it would be reviewed.
38. I have next considered what injustice arose from the Council’s departure from its policy. I consider only limited injustice arose from the fifth departure from policy listed above. While not having a copy of the written policy will have caused some irritation to Mr and Mrs C, they later obtained a copy. So, no lasting harm was done by that.
39. But I consider more significant injustice flows from the other departures of policy.
40. The failure to give an adequate warning of the potential for the Council to impose restrictions on correspondence meant the sanction, when imposed, caused unnecessary distress. I accept that any decision to impose a sanction may cause distress. That in itself does not flaw the action. But not warning in this case meant Mr and Mrs C had no opportunity to familiarise themselves with the policy or its potential implications. This is something they could have done had the Council given fair warning of its intentions.
41. But it is the absence of any time limit on the sanction, nor any review, which caused the greatest injustice in this case. The Council imposed an unnecessary level of restriction on Mr and Mrs C’s communications in two ways.
42. First, there are phrases in the letter which suggested the Council sought to impose an indefinite ban on correspondence about policies designed to curb air pollution. In three places the letter referred to potential correspondence about policy matters. First when it referred to “future correspondence on this matter or similar matters” (my emphasis). Second when it referred to correspondence on “related pollution policy issues” – on both occasions in the context of explaining it would not enter future correspondence with Mr and Mrs C. Third, also in the phrase that it was “terminating correspondence” about the “wood burning complaint (and related policy)” (again my emphasis).
43. I consider the Council must strike a balance when it seeks to prevent correspondence from someone about a specific matter. It can take account of its own resources. And while not an issue here, there will be occasions when it needs to protect staff from abuse that can sometimes accompany unreasonably persistent behaviour. These can be legitimate reasons to restrict communications.
44. But it must also consider the impact on the person whose activities it seeks to curtail. Decisions to restrict correspondence that are short-term in effect, regularly reviewed and narrow in scope are more likely to be justified. In this case I do not find the Council engaged in any such balancing exercise.
45. I consider Mr and Mrs C should generally be free as citizens of the Council’s area to comment on its air pollution policies. Council policy will not be fixed indefinitely. The law, Government guidance and the Council’s own position may all change over time. In the future Mr and Mrs C may want to question the Council again about its aspiration to becoming a smoke free zone and progress towards that. Or contact local Councillors to support changes to policy. The Council’s letter suggested they could not do that.
46. In comments on a draft of this decision the Council suggested that it had not sought to impose a ‘blanket ban’ on communications about all air pollution matters. I recognise that it implied Mr and Mrs C could comment in the event the Council began consultation on introducing an area-wide smoke control zone. This potentially conflicted with the phrases quoted in paragraph 42. But even so, I consider those statements gave the clear impression the Council wanted to restrict communications about air policy indefinitely. It was not simply drawing a line under recent exchanges. So even if this was not the Council’s intent, it was the result.
47. Second, I also cannot see that it is right or fair that Mr and Mrs C cannot make a specific complaint about the impact of their neighbour’s wood burning stove in the future. I consider it inherently unreliable for the Council to rely primarily on an investigation it undertook several years ago to justify not investigating potential statutory nuisance in perpetuity. I recognise it also places some weight on the investigation it conducted more recently. But this was still more than three years ago and more limited in scope. So, I do not consider it can put as much weight on this.
48. The facts around the usage of the wood burning stove could change over time – for example, the hours or the intensity of its use; or the materials burned inside it. These factors could all influence a judgement on statutory nuisance, as could changing methodology used by the Council to investigate such reports. The Council must be open therefore to the prospect of further investigation if Mr and Mrs C request it and provide evidence to support their request. The Council must consider that evidence on its merits.
49. One principle we follow when remedying complaints is that we should try and put complainants back in the position they would have been had no injustice been caused to them by the Council’s fault. The Council has agreed a recommendation to lift its restrictions on Mr and Mrs C’s correspondence. However, I reiterate that we do understand why councils need to ‘draw a line’ at times. In this case, Mr and Mrs C argue the Council conflated their policy concerns with their historic requests for investigation into the impact of their neighbour’s wood burning stove on them. But I do not find the distinction they draw between the two matters always clear from their correspondence.
50. I recognise Mr and Mrs C feel they were drawn into debate with the Council about past investigations, because of comments it made in reply to them. But it is also evident Mr and Mrs C drew on personal experience when setting out their views on policy. No-one reading that could come away with the impression that Mr and Mrs C do not feel wronged by the past investigations and remain aggrieved at the outcome of those.
51. I cannot try and impinge on how Mr and Mrs C choose to express themselves if they contact the Council about the neighbour’s wood burning stove or air quality policy matters in the future. But clearly it will serve no benefit to them to bring up past disagreement with the Council’s judgements which cannot be challenged after such a passage of time. I consider both sides have made their positions clear on the previous investigations. I did not ask the Council to rescind its views about the validity of those investigations – only the sanction it has imposed which seeks to restrict Mr and Mrs C’s correspondence with it moving forward.

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Agreed action

52. The Council accepts the findings set out above. Within 20 working days of a decision on this complaint it has agreed to:
1. provide an apology to Mr and Mrs C accepting the findings of this investigation; this will be in line with section 3.2 of our published guidance on remedies Guidance on remedies - Local Government and Social Care Ombudsman;
2. remove any restrictions in force that prevent Mr and Mrs C communicating with the Council in respect of the impact of their neighbour’s wood burning stove or related air quality policies;
3. remove and delete any records kept by the relevant service and / or its Head of Customer Services which refer to Mr and Mrs C having been sanctioned under this policy; any record should read as if no such sanction was ever imposed upon them.
53. Within two months of a decision on this complaint the Council has also agreed to issue advice to all senior officers who may be asked to consider imposing sanctions under this policy. This will include advice:
1. that usually we would expect to see a clear warning given if the Council plans on restricting contact through use of its policy to manage unreasonable complainant behaviour;
2. that any sanctions must be time limited and subject to review in line with its policy.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mr and Mrs C. The Council accepts these findings and has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman