Sefton Metropolitan Borough Council (19 011 304)

Category : Other Categories > Commercial and contracts

Decision : Upheld

Decision date : 30 Sep 2020

The Ombudsman's final decision:

Summary: Mr B, the Chief Executive of a not-for-profit company providing care services, complains the Council made prolonged and unjustified attempts to tarnish his reputation and do him personal harm after it received allegations from members of the company’s staff. The Ombudsman finds no evidence to link Mr B’s claims of significant personal harm to the actions of the Council in this matter. There was some however fault in the way the Council described Mr B’s character in an email, and in its handling of his complaint. That caused injustice for which a remedy has been agreed.

The complaint

  1. The complainant, whom I shall call Mr B, complains the Council made prolonged, unjustified, underhand, and well-documented attempts to tarnish his reputation and do him personal harm. He complains that:
      1. When the Council received complaints from staff at Y Ltd, where he is the Chief Executive Officer (CEO), it attempted to interfere in the internal issues raised on the flawed basis that it was entitled to do so as it commissioned services from Y Ltd. The Council attempted to exclude Mr B from the review of concerns raised, preventing him from engaging to demonstrate Y Ltd.’s actions were legitimate;
      2. The issues raised by the three members of Y Ltd’s staff remain unknown to Mr B as they have not been raised directly with him or his employers. If they had related to safeguarding issues or allegations of criminal activity, the Council should have acted immediately in accordance with its safeguarding procedures and it did not do so;
      3. The issues the Council put forward to justify its actions changed over time and led to 'fishing expeditions' to gather negative information to discredit Y Ltd tarnishing its professional reputation;
      4. The Council approached Y Ltd.’s trustees without his knowledge and were deliberately timed to coincide with periods when he was not available;
      5. Council Officers inappropriately contacted third parties about the issues in an effort to further negatively impact on Mr B both personally and reputationally, for example by sending an email to the Clinical Commissioning Group (CCG) describing Mr B as aggressive and challenging;
      6. Council officers carried out a persistent personal and targeted attack on Mr B's wellbeing and reputation with intent to harm; and
      7. The Council took too long to investigate his complaint.
  2. Mr B believes the actions of the Council were driven by specific officers with intent to cause him personal and reputational harm, and he says he did suffer such harm. He reports that following personal psychological and emotional stress he suffered a stroke, and his career and potential earnings were reduced by three years as he has decided he will retire sooner than he had previously planned.

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What I have investigated

  1. I have investigated those parts of the complaint which refer to actions of the Council which directly involved and impacted on Mr B as an individual, and which may have caused him personal injustice. In particular, I have considered:
  • Whether the Council made unsubstantiated allegations about Mr B to the Trustees of the firm, causing him reputational and physical harm.
  • The impact the general conduct of the Council’s investigation had on Mr B personally, but only insofar as this is separable from his professional role as CEO; and
  • The Council’s handling of his complaint.
  1. The final section of this statement sets out my reasons for not investigating other aspects of his complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I considered all the information provided by Mr B about his complaint. I made written enquiries of the council and took account of the information and evidence it provided in response. I have taken account of the Ombudsman’s guidance on remedies.
  2. Mr B and the Council had an opportunity to comment on a draft of this decision, and I considered all comments received in response.

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What I found

Background

  1. The Council commissions services from a not-for-profit company, Y Ltd, which offers social care services. Mr B is the CEO of the company. In June 2018, a member of staff of Y Ltd contacted the Council, raising concerns about how the firm was being managed.
  2. The Council’s commissioning officer contacted the Chair of the Trustees of Y Ltd, setting in train an exchange of correspondence and communications including a meeting with the firm’s legal representative. Exchanges included the Chair of Trustees confirming that issues raised had shown the firm needed tighter policies and procedures and that it was carrying out a review to ensure transparency, and the Council seeking information about the process used by Trustees to ensure the service offers value for money, given the significant public funding the firm was receiving from it. Since concerns were also raised about whether funding from the Council for service users was being used appropriately, the Council considered this a safeguarding issue.

Unsubstantiated allegations and comments made by the Council to the Trustees of the firm and others

  1. Mr B asserts that in making its enquiries with the Trustees about the allegations made by a member of the firm’s staff which concerned in part his conduct within the organisation, the Council acted beyond its remit and conducted a ‘covert, unwarranted and belligerent campaign’ against his professional reputation. He says Council staff perpetrated a covert attempt to undermine him and the company, rather than make any effort, at that stage, to determine the truth of the information supplied to them by employees. He feels that the contact with the Trustees was designed to influence and manipulate their views in the hope that they would take investigative action against him as the CEO.
  2. Responding to Mr B’s complaint at the first stage of its complaint procedure, the Council noted that its contract with Y Ltd is silent on such issues as those it was considering in response to the allegations it had received from staff, and as such when exploring those allegations it was reliant upon informal custom and practice. The Council said it had no evidence to support Mr B’s allegation of a campaign against him and did not agree that there was a personal reason to target him. It considered it would have been inappropriate for officers to have contacted Mr B directly, rather than the Chair of Trustees, as it would not have ensured impartiality and could have placed his employees in a difficult position. Taking a wider view, a recommendation was made for a review of the commissioning of adult social care and the procurement of services, to lead to contracts with associated terms and conditions, including dispute resolution clauses, so such matters are dealt with transparently in the future.
  3. I have not seen evidence to show that the Council made allegations about Mr B to the Trustees: what it did do was to advise the Trustees of the allegations made by others. And, in the circumstances of the case, given that an employee had made a formal grievance against Mr B and had themselves sent that to the Trustees, it is unlikely that the Council’s communication was the first to appraise the Trustees of the allegations.
  4. I do not need to take a view on whether the Council was at fault in approaching the firm about the allegations it received. Principally this is because I have not seen any evidence to show that the Council’s action caused Mr B a significant personal injustice. In terms of service improvement in the wider interest, it is also the case that the Council has proposed and started action to review and improve its processes.
  5. Mr B also complained that a Council officer sent an email to the CCG in which they referred to Mr B as aggressive and challenging. In its complaint response on this point the Council said that the comments made in the email were the professional opinion of an officer based on her experience and that of her staff in dealing with Mr B over time, and were set in the context of providing background to colleagues. The Council accepted the comments were ‘unflattering’ but said they were not made to cause personal or reputational harm.
  6. I have not seen evidence to show there were good grounds for the use of this wording in correspondence with the CCG, and so I find it was fault. While the intention may not have been to cause harm, and I have not seen evidence that the email led to injustice in terms of that body’s interaction with Mr B, he has a justifiable sense of outrage at the Council’s actions in this matter.
  7. Mr B has also raised concerns about what the Council represented as the views and concerns of the CCG in correspondence with the Chair of Trustees, and he has provided evidence that the CCG does not accept what the Council said as accurate. However, I have not seen evidence that this led to personal injustice for Mr B.

The impact of the Council’s investigation on Mr B personally

  1. In holding the senior position of Chief Executive at Y Ltd, Mr B might reasonably expect to deal with some degree of interaction with the Council, since the firm provides services on its behalf. He was dissatisfied, for example, with the Council’s requests for information which in his view it had no legal entitlement to request or receive. However, these were matters between the Council and Y Ltd, not Mr B as a private individual.
  2. Regarding any personal impact, as set out in paragraph 2 above, Mr B has said that the Council’s actions caused him reputational and physical harm, and damaged his earnings potential. However, I am unable to link this claimed injustice to fault on the part of the Council.

The Council’s handling of Mr B’s complaint

  1. Mr B complained to the Council on 4 February 2019. The Council’s published complaints procedure sets out that at the first stage a manager will look at the complaint and a response will be issued within 15 working days. In Mr B’s case, the appointed officer did not get in touch with him until 12 April. That delay was fault. A meeting was subsequently arranged so that the scope of the complaint could be agreed, and due to issues of availability on both sides this took place on 13 May, after which there was a further exchange of correspondence about the scope of the complaint and then further delay before the Council issued the response at stage one on 3 July 2019.
  2. Mr B was dissatisfied with the response and on 24 July requested escalation of his complaint to the second stage of the Council’s procedure. The published timescale for response at the second stage is 10 working days. Mr B chased the council for its response on 19 August, and it was provided on 28 August. The delay was fault.
  3. The officer responding at stage 2 wholly agreed with the findings from stage 2 and reiterated that while the complaint was not upheld, appropriate action had been taken to respond to issues arising from it, relating to the Council’s contractual relationship with social care service providers generally as well as with Y Ltd specifically, going forward.
  4. Mr B remained dissatisfied. He considered his concerns had not been taken seriously during the complaints process, that information made available at the second stage which had not been available at the first was not referred to in the second stage response, and that the investigation process had not been properly followed in accordance with the Council’s policy.
  5. The stage two response was poor. It failed to address the points Mr B had made in his response to the first stage, and there are no notes available of any interviews with staff at the second stage. The failings in the stage two investigation were fault. As a result of these failings, Mr B had a justified sense of dissatisfaction about whether his concerns had been properly investigated and he was put to a degree of time and trouble in seeking to clarify this and to progress his complaint.

Agreed action

  1. In recognition of the injustice caused to Mr B by the faults identified in the Council’s actions in this matter, identified earlier in this statement, I recommended that within four weeks of the date of the decision on this complaint the Council:
  • Issues him with a formal written apology; and
  • Pays him £350.
  1. The Council has agreed to these recommendations.

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Final decision

  1. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

  1. I did not investigate those parts of Mr B’s complaint where it is evident that the actions complained of were principally concerned with the activities of Firm Y, with which the Council contracted for services, or with Mr X specifically in his role as Chief Executive of that firm. This is because anyone holding that senior position engaging with the Council where this is required does so on behalf of the firm and not as a private individual.
  2. Further, as its Chief Executive Mr B was also an employee of Firm Y and so if he felt he was being caused stress by the demands of the business to respond to the Council’s requests for information, that was a matter between him and his employer.

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Investigator's decision on behalf of the Ombudsman

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