Summary: There is no fault in the Council’s decision to ban the complainant from its library facilities, after an incident. However, the Council was at fault because it did not set a proper review period for the ban. The Council has agreed to remedy the injustice this caused by setting a review period now. There is no evidence of fault in several other points the complainant has raised.

The complaint

1. I will refer to the complainant as Mr C.
2. Mr C complains the Council has banned him from its library facilities after an incident at one of its libraries. Mr C disputes the Council’s description of the incident and its decision to ban him. He also complains about restrictions the Council has introduced at the library, a call and an unsigned letter he received from the Council.

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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. 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)

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How I considered this complaint

5. I reviewed Mr C’s correspondence with the Council, and the Council’s unacceptable behaviour policy for its library and leisure services.
6. I also shared a draft copy this decision with each party for their comments.

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What I found

7. The Council re-opened its libraries in July 2020, after restrictions imposed during the initial Covid-19 lockdown began to lift. As part of ongoing measures to prevent the spread of the virus, the Council required library visitors to make an appointment.
8. Mr C had an appointment to use the library printer facilities on 23 July. He arrived a few minutes before his appointment, and because of this, library staff did not allow him to enter the building. Mr C says it was raining heavily, and complained to staff that being made to wait in the rain meant he may catch Covid-19. He says a staff member mockingly responded he was more likely to catch pneumonia.
9. Later, as Mr C was leaving the library, he said he purposely simulated a cough to give the impression he had indeed caught pneumonia. Although staff were nearby, he says he did not cough in the direction of any staff member.
10. On 27 July, the Council wrote to Mr C. It said it was suspending his membership of its library facilities until further notice. This was because he had coughed, or pretended to cough, “on a member of library staff”, which the Council considered to be abuse.
11. Mr C wrote a letter of complaint to the Council the same day. He said he had received an ‘unsolicited’ call before the letter about the suspension, which he regarded as malicious communication, and also complained the letter had not been signed.
12. Mr C went on to describe his version of events. He said there was no reason visitors could not be allowed into the building, to wait out of the rain. He then wrote:

“I asked this venomous snowflake person [name] (the last of the three witches of the Hub) when I said I will catch the coronavirus if they don’t allow us to come in out of the rain. At that point this [name] “mocked me” by saying “you have more chance catching pneumonia” and laughed … This is not acceptable to treat people like farm animals.”

13. Mr C confirmed he had coughed to “simulate the start of [his] pneumonia” as he left the library, but said he was at least 10 feet away from staff. Mr C said the Council was in breach of the Equality Act 2010 by “treating the public with complete contempt”.
14. Mr C said a manager had then accused him of coughing on a member of staff, and that he responded by calling him a liar. Mr C accused the manager of then coughing in his own (Mr C’s) face.
15. Mr C asked the Council to preserve copies of CCTV footage for the litigation he intended to pursue, after approaching the Ombudsman. Mr C also said the Council’s policy on restricting entry to the library was disproportionate, as he said Covid-19 was “not affecting the majority of the general public”.
16. The Council responded on 3 August. It said, after receiving a feedback request form, a senior librarian had called Mr C on the number he had provided. The librarian had explained the restrictions it had introduced, but then terminated the call when Mr C became abusive. The librarian had then written to Mr C to ban him from Council libraries, because he had failed to follow staff instructions on a visit on 20 July, and then because of the coughing incident on 23 July. The Council apologised this letter had been sent unsigned.
17. The Council rejected Mr C’s allegation the call was unsolicited, given he had provided his number as a means of contact. It reiterated the restrictions it had introduced, and said his request for CCTV footage had been forwarded to the Council’s Freedom of Information team. The Council confirmed Mr C’s ban would remain in force until it lifted Covid-19 restrictions.
18. Mr C wrote to the Council again on 6 August. He referred to the senior librarian as “some random housewife who think she is queen for a day” and said he considered the Council “a Mafia or Mafioso”. He asked the Council to confirm it had preserved the CCTV footage, and to give him the name of the library manager to whom he had spoken on 23 July, to allow him to take legal action against the manager.
19. Mr C repeated his allegation that being made to wait in the rain to enter the library was a breach of the Equality Act, that the Council had failed to make reasonable adjustments “for people that will put peoples health at risk” and that it had not treated him with respect. Mr C said he would take legal action against the Council, for the cost of a printer and the membership of a private gym.
20. Mr C accused the Council of abusing his human rights, libelling him, and lying about the incident which he considered a form of discrimination. He also again criticised the proportionality of the entry restrictions at the library.
21. Mr C wrote again on 10 August, asking to escalate his complaint to Stage 3 of the Council’s process. He reiterated his previous allegations, and added that, because the Council had referred to a “corporate feedback request”, this meant the Council was bound by the Companies Act 2006 and was in breach of this for sending an unsigned letter.
22. Mr C said he would bring a private criminal prosecution against the library staff member he accused of lying about him. He said the Coronavirus Act 2020 did not state the Council could treat “people like farm animals”, and that, it any case, it was now ‘accepted’ “there is no virus or it effects only a small proportion of the general public”. Mr C repeated that his original comment to the library staff member was that he may catch Covid-19 if made to wait outside in the rain, to which the staff member had replied mockingly.
23. The Council responded to ask Mr C if he wished to wait until his request for CCTV footage had been dealt with, before the Council proceeded with the Stage 3 complaint.
24. Mr C replied on 17 August. He said he now wished to make a complaint about the officer who had sent the original complaint response, and accused him, and the two library staff, of lying. He demanded an apology and that members of staff be dismissed, and said these matters would be put to a court.
25. Mr C wrote again on 24 August. He clarified that his complaint now covered six points:

• the original ‘coughing’ incident;
• the ‘unsolicited’ call he received from the senior librarian;
• the banning letter, which he said was “mail fraud” because it was unsigned;
• that the Council was in breach of the Equality Act by making library visitors wait outside in the rain, and because of the “false allegations” it had made against him;
• that the Council was in breach of the Protection from Harassment Act for the same reason;
• that the Council officer who had written the first complaint response was guilty of “maladministration of public office”, because had had made “false allegations” against him of being abusive during the call before listening to the call recording, without lawful excuse.

26. Mr C requested a copy of the CCTV footage and a copy of the recording of the call from the senior librarian.
27. The Council’s Information Governance team sent Mr C an undated letter. It confirmed there was no footage available from outside the library from the day in question. It had reviewed the internal CCTV footage, and said it was not clear whether anyone had coughed at another person. However, because other people were visible in the footage, it did not consider it appropriate to disclose the footage to Mr C. It said Mr C’s solicitor or the police could contact the Council for the footage if it was needed for legal or criminal proceedings.
28. The Council responded on 2 October. It addressed each of his six points:

• the Council had watched the CCTV footage and considered it had identified the simulated cough. It noted Mr C had admitted to simulating a cough, and had not sought to cover his mouth. Although he had not coughed in anyone’s face, the Council considered Mr C’s purpose was to cause discomfort, and was unacceptable in the ongoing Covid-19 pandemic;
• Mr C had left his name and phone number when he initial registered his complaint at the library, and the librarian’s call was therefore not unsolicited. The call had not been recorded so the Council could not provide a copy;
• there is no such thing as ‘mail fraud’ in English law. The Companies Act 2006 does not require Council officers to sign letters;
• the Council had introduced restrictions at the library to help protect staff and the public from Covid-19. This included limiting the number of people who could enter, which was a common measure under the circumstances. The Council asked Mr C to elaborate if he considered it had discriminated against him because he had protected characteristics under the Equality Act;
• the Council acknowledged Mr C did not feel he had been abusive on the call, but it could not draw a conclusion on this in the absence of a recording. However, it noted the tone of Mr C’s various letters. It was for the courts to decide an allegation of harassment;
• the Council officer who had responded to Mr C’s original complaint could not have listened to the call as there had been no recording.

29. The Council referred Mr C to the Ombudsman if he wished to pursue his complaint further.
30. The Ombudsman received Mr C’s complaint on 15 October.

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Council policy

31. The Council has provided a copy of its library services’ unacceptable behaviour policy. It says:

“Unacceptable behavior is generally defined as:

Subjecting staff or customers to any of the following actions:

• threats of physical violence;
• swearing;
• inappropriate cultural, racial or religious references;
• rudeness, including derogatory remarks and actions;
• non-payment for goods or services; and
• failing to follow staff instruction.

The above list is not exhaustive and may include other matters depending on the given circumstances.”

32. The policy also says:

“It should be noted that restrictions on access to buildings will usually take the form of a 6 month ban. However, in severe cases periods of up to 12 months may be considered … Towards the end of the exclusion period the position should be reviewed by the Leisure Facilities Manager or Principal Librarian to determine whether any form of extension is required.”

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Analysis

33. The Ombudsman’s role is to ensure councils adhere to the appropriate procedures when making decisions. We do not offer a right of appeal against contested council decisions, nor replace the judgement of its officers with our own; and we cannot uphold a complaint simply because a person disagrees with a council decision.
34. In this case, the Council considers Mr C’s behaviour during his visit of 23 July was unreasonable, to the point it was entitled to ban him from its facilities. I note there is CCTV footage of the incident in question, but I have not sought to obtain or review this. This is because there is, it appears, little dispute about what actually happened – by his own admission, Mr C simulated a cough while staff were in the vicinity, although not very close to him.
35. I acknowledge Mr C does not feel this warrants a ban from library facilities. However, under the circumstances, I understand why the library staff would take such exception to this behaviour. The Council’s policy allows it to introduce a ban in such a situation, and so this is a decision it was entitled to make. It is not for me to come to my own view whether a ban was proportionate.
36. This said, I am concerned about the period for which the Council says the ban will apply, which is ‘until such time as Covid-19 restrictions are lifted’. This does not adhere to the Council’s policy, which says a ban will normally run for 6 to 12 months, depending on the severity of the unacceptable behaviour, at which point it will review the ban and decide whether to extend it.
37. I cannot see any particular reason why the timing of Mr C’s ban should coincide with the lifting of Covid-19 restrictions, rather than the period set down in the policy. Although Mr C’s behaviour related to Covid-19 restrictions, the Council’s decision to ban him was on the general basis he had acted in a way which upset staff. This is a normal part of the Council’s unacceptable behaviour policy.
38. It is also not clear what exactly the Council means by ‘lifting of the restrictions’ anyway. There have been different levels of restriction, applied at different times to different areas. And the Government has lifted some restrictions, only to then reimpose them later. So I do not consider this is an appropriate benchmark to use here.
39. On balance, I consider this fault. Although the Council was entitled to introduce a ban, it should have set a time period in accordance with its policy.
40. I do not consider this has caused Mr C a significant injustice. The Council policy allows either a 6mth or 12mth ban. A 6mth ban would now, recently, have expired, but I note the Council’s library services have been mostly closed again since the introduction of the most recent national lockdown, and so the facilities would not have been available to Mr C anyway. Alternatively, if Mr C had received a 12mth ban, it would still be in force at the time of writing.
41. Either way, however, I consider Mr C has been caused a limited injustice here, because he was entitled to know how long the ban would be in force before review. The Council should remedy this by retrospectively setting a proper time period now, and reviewing the ban if that time period has expired. I make a recommendation to this effect.
42. I will now address some of the other points Mr C has raised.
43. Mr C questions the proportionality of the restrictions the Council imposed at the library, which led to him having to wait outside in the rain.
44. Again, this is a matter of judgement for the Council. The Ombudsman has no right to decide what policy the Council should introduce, and I note the library restrictions appear similar to those introduced in shops and other public facilities. It is unfortunate this means visitors will sometimes need to wait outside, potentially exposed to the elements, but this fact alone does not mean the Council was at fault for introducing the restrictions.
45. Mr C complains the Council’s policy means he has been treated as a “farm animal”, and that this is a breach of the Equality Act 2010 and the Coronavirus Act 2020.
46. The Equality Act 2010 makes it unlawful to treat a person less favourably because of a ‘protected characteristic’, such as race, religion or sexuality. I cannot see any facet of Mr C’s complaint which engages this prohibition. And the Council does not need to rely on the Coronavirus Act to decide to introduce booking and waiting restrictions at its libraries, so this is also not relevant. I find no fault here.
47. Mr C has made various comments about the conversation he had with library staff on the day of his visit, and his phone call with a senior librarian shortly afterwards, and he says staff have lied about these. However, I was not party to these conversations, and it is evident there is no recording on which I could draw an objective view. I cannot make any findings on these points.
48. I note Mr C again says these alleged lies breach the Equality Act and the Protection from Harassment Act. As I have explained, the Equality Act does not appear to apply here. Harassment is a criminal offence, which is a matter for the police to investigate, not an allegation to be addressed through the Council’s complaints process, or the Ombudsman.
49. Mr C also complains the Council made an unsolicited call to his phone, and also that the letter explaining his ban was ‘mail fraud’ because it was not signed.
50. Given the senior librarian was able to call Mr C’s phone, it is clear he made his number available. Even if he did not actually expect to be called by the librarian, I do not consider this can reasonably be regarded as ‘unsolicited’.
51. I also do not see any significance in the fact the Council’s letter was not signed. While this might be seen as a matter of courtesy, there is no legal requirement for the Council to sign a letter explaining it has banned someone from its facilities.
52. I find no fault on these issues.

Summary

53. The Council was entitled to ban Mr C from its library facilities. However, it was at fault for not setting a proper time period for when it will review the ban. This has caused Mr C an injustice, which the Council should remedy.
54. There is no fault in the other aspects of Mr C’s complaint. The Council has the right to decide what restrictions to introduce at its library. There is no evidence this breached Mr C’s rights under any of the legislation to which he has referred.
55. I cannot make findings on Mr C’s complaint Council staff have lied about his conversation with them during the visit, or on the phone.
56. There is no fault by the Council in calling Mr C after he left his phone number, or sending an unsigned letter.

Agreed action

57. Within one month of the date of my final decision, the Council has agreed to apply a retrospective review period for Mr C’s ban, in accordance with its policy. If the review period has already expired, the Council will also carry out the review immediately.
58. The Council will then write to Mr C to confirm the time period, and, if relevant, the outcome of its review.

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Final decision

59. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman