Summary: Mr F complained about the actions of the Council and its leisure contractor. We found the Council at fault for having an unclear complaint process and for its responses to Mr F’s concerns. These caused Mr F distress and put him to unnecessary time and trouble. The Council accepts these findings and at the end of this statement, we set out action the action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Mr F’. He runs a sport club, providing classes for children and young people. His complaint concerns his hire of premises from a contractor which operates the Council’s leisure facilities on its behalf. Mr F complains:

• that in October 2020 the contractor inappropriately suspended his booking of facilities at a leisure centre; it failed to provide reasons to justify the suspension and changed its reasons for doing so over time;
• that when he raised this matter with the Council it failed to resolve the complaint and made matters worse; arranging for the re-application of the suspension even though at that time the contractor had lifted it; it provided poor customer service failing to ensure relevant personnel attended meetings and would not answer his questions; in particular, about one allegation made by the contractor which Mr F disputed.

2. Mr F says because of these events he could no longer run his sport club in the Council’s area, which he had done for over 10 years. He also lost income as a result, which has required him to move home to find cheaper living accommodation.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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)
6. 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

7. Before issuing this decision statement I considered:

• Mr F’s written complaint to the Ombudsman and any supporting information he provided by email or in telephone conversations;
• correspondence between Mr F and the Council which pre-dated our decision to investigate the complaint;
• further information provided by the Council in reply to my written enquiries;
• any relevant law, procedure, policy or guidance referred to in this statement.

8. I also sent Mr F and the Council a draft decision statement setting out my proposed findings. I took account of any comments they made in response, before finalising the statement.

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What I found

Council and Contractor Policies

9. The contract between the Council and contractor allows the latter to hire facilities to third parties. At all times the contract says the contractor must ensure appropriate health and safety and child safeguarding policies are followed. The contract also says the contractor must have a “clearly defined complaints procedure”, approved by the Council.
10. Anyone hiring facilities managed by the contractor completes a facility/event hire form. This contains some general rules around the use of the facilities. The form says third parties must follow health and safety procedures and sports clubs that work with children must provide a copy of their child safeguarding policy. The form does not say what will happen if the contractor considers the hirer to be in breach of any rules. However, it says if a hirer wants to complain they should do so to the site General Manager.
11. The contractor has a complaint policy, although this refers to ‘feedback’ rather than complaints. It says that if anyone has feedback that it has not delivered its service to the standard expected they should speak first to the Duty or General Manager on site. If this does not resolve the matter then the person should email the General Manager who will aim to provide a response within seven days.
12. The policy says that if this does not resolve any dispute then the person can “escalate their feedback” to the Contract Manager responsible for the site. They will then contact the person to discuss the matter in more detail.
13. The Council has its own complaint procedure which has two stages. It says the first stage is dealt with by a manager for the service complained about. The second stage will be considered by its Chief Executive.
14. The complaint policy says that “While complaints are always to be welcomed, some customer behaviour may be considered unreasonable and this takes up a disproportionate amount of council resources. Unreasonable behaviour may include persistent contact and unreasonable demands, while the complaint is being investigated, or once all the complaints stages have been exhausted.”
15. The complaint policy contains no reference to services that are delivered by contractors on behalf of the Council.

Chronology of key events

16. I set out below a summary of what I consider are the most significant events forming this complaint. It is not a full record of all interactions between Mr F, the Council and the contractor during the events covered by this complaint (October 2020 to June 2021).
17. The initial incident leading to this complaint occurred in October 2020. This was shortly after the leisure centre re-opened following an enforced closure due to COVID-19 restrictions.
18. On 23 October the contractor wrote to Mr F saying it was suspending his booking of the facility until further notice. It said that when Mr F used the facility a few days previously there had been several breaches of rules. I have not been provided with a copy of that original email. However, as I explain below, the text was later repeated in a subsequent email sent to Mr F.
19. I note this was the second suspension of Mr F’s booking within a few weeks. The earlier suspension was for different reasons around payment and was resolved quickly between Mr F and the contractor.
20. After the initial contact of 23 October, Mr F was in communication with the site General Manager. Further to that communication Mr F continued hiring the facility. So, despite the initial communication saying he was suspended, the contractor took no action to enforce that.
21. The contractor also sent Mr F a second email at the end of October which included the text of the original email and provided more explanation for its concerns. This second email said “bookings could not continue” until the club and Mr F had “agreed action” around several matters. I summarise the contractor’s concerns as follows:

• that equipment and a vehicle used by the club blocked or impeded entrance/exits;
• the club failed to adequately supervise parents and children arriving for the club who congregated in corridors and this led to breaches of social distancing requirements;
• the club did not stick to agreed timings;
• a concern that “rather worryingly, small children were allowed to leave the sports hall alone and were found wandering the corridors looking for the toilet. A member of staff had to intervene and assist them […] this is in no way acceptable”.
• that when concerns were raised about the club, Mr F responded in a way that was “flippant and aggressive” and “this has consistently been the case over the years”.

22. Mr F has sent me a copy of a reply he sent to the contractor the day after he received this email. In his reply, Mr F promised to keep entrances and exits clear and explained why he had misunderstood where he could park his vehicle previously. He explained the difficulties in supervising parents and children when they entered the facility but indicated willingness to work with the contractor to avoid any repeat. He did not comment on the concerns about children ‘wandering the corridors’ or the suggestions around his conduct but said: “If you would like a response on any of the other points […] then please can you send more detail, especially for the more serious claims (It should be fairly obvious those that i am referring to).”
23. I understand that again the contractor made no attempt to enforce a suspension and Mr F continued to hold classes at the leisure centre until COVID-19 restrictions were reimposed in December 2020, forcing its closure. In the meantime, Mr F contacted the contractor’s Contract Manager. They arranged an online meeting with Mr F, but this did not proceed as he was unhappy the site General Manager was not present. Mr F forwarded emails to me that he sent to the Contract Manager further to that meeting indicated he wanted the meeting re-arranged and wanted to know more about the allegation around ‘children wandering the corridors’.
24. Mr F had no response to those emails and so, later in December 2020, he contacted the Council, sending an email to a manager in its Leisure Services. Mr F’s email said:

• the contactor had written to him saying it was suspending his bookings and one of its concerns was around children being left unsupervised in the leisure centre; he said the basis for this allegation had not been clarified;
• that he had attempted to resolve matters with the contractor without success and was unhappy the site General Manager failed to attend a meeting.

25. In its initial responses the Council said it was sorry if Mr F ‘felt’ the contractor had not worked effectively with him during COVID-19. The Council did not respond to Mr F’s specific points. He responded by asking for a meeting.
26. In January 2021 a different manager in the Council’s Leisure Services took over correspondence with Mr F and set up a meeting. They invited Mr F and representatives from the contractor. A date was arranged for the meeting in mid-February but the Council manager was absent due to sickness and so it did not proceed.
27. After this time Mr F sent different emails to both the Council manager and others in Leisure Services asking for information about the statement there were unaccompanied children in the building. On his own estimate he sent around 20 emails in a two week period.
28. During this time one of the contractor’s employees made a statement about what had happened the previous October. Their statement began by saying “children were unsupervised and a couple of them [were] looking around for the toilet”. It then described in some detail a single incident where Mr F and another male employee of the sports club had shown a young child to the door of the ladies’ toilet, before going back into the sports hall. The statement said the child was left unaccompanied for about 10 minutes before Mr F returned and he then asked a parent if they would check on the child and the parent fetched the child from the toilet.
29. The Council shared the employee’s statement with Mr F. He said it was different to what the site General Manager had said to him. In particular, the statement did not support the allegation that children had been found wandering in corridors. The Council asked Mr F to come to a re-arranged meeting but he refused saying “I don’t see the point”. He said he wanted the conflicting statements about the child safeguarding concerns resolved first. The Council persisted in trying to get Mr F to change his mind, but he said he would not agree to a meeting until it answered this point.
30. The Council decided at this time to send a response to Mr F under its complaint procedure. It said the contractor had wanted to discuss potential breaches of COVID-19 rules with Mr F but he had not attended meetings arranged to discuss. And that “until a discussion to resolve these serious issues can take place, I support the ongoing suspension of your booking”. The Council suggested Mr F could resolve matters by acknowledging the contractor’s concerns and giving commitments to avoid a repeat.
31. Mr F and the Council exchanged further emails where he expressed dissatisfaction with its response. In his emails Mr F said he had been ‘defamed’ by the statement that he had left children unaccompanied. He said the Council was following its own agenda and was misinformed, as his club was not suspended from the leisure centre.
32. Around this time Mr F encouraged parents of the children attending the club to contact the Council and contractor to support the club re-opening. Internal emails suggest the contractor had concerns about re-booking the facility to Mr F given his escalation of the complaint and the Council wrote to it saying it would support a suspension until there was a conversation with Mr F “regarding child safety measures”.
33. Later in April 2021 the Council wrote to a parent, in an email seen later by Mr F, where it said: “there appears to be some confusion and miscommunication” and “there certainly hasn’t ever been a missing child or children at [the leisure centre]”. On the same day the contractor wrote to Mr F, appending its email of 29 October, and said it would be pleased to continue accepting bookings from him if he would contact its site General Manager about the matters raised in the email sent to him in late October 2020 (see paragraph 21).
34. Mr F wrote back and said he would return to the venue if the contractor agreed certain conditions including retracting any suggestion he had left children unsupervised. He reiterated that he wanted a meeting with the Council and contractor but only once this matter was resolved.
35. The Council offered to escalate Mr F’s complaint to Stage Two of its corporate complaint procedure. It told Mr F he had to resolve outstanding operational issues with the contractor before he could return. In an email in mid-May 2021 a senior manager for the contractor wrote to Mr F and said that if Mr F would “sort out the operational issues [..] we can welcome you back”.
36. In its final response to Mr F, sent in late May 2021, the Council said:

• it did not manage the contractor’s complaint procedure but tried to ensure it operated “effectively and transparently”. The Council did not tell its contractor “how and when they choose to apply a suspension”;
• it had tried to arrange a meeting with Mr F and representatives from the contractor and would still do so if he was willing;
• it did not consider Mr F had suffered any harassment from the contractor or its employees. It had simply been reminding the club of the need to follow rules around operating safely during the COVID-19 pandemic;
• it supported the contractor’s “assertion that children were unsupervised” at the centre. It would be “happy for booking to resume” if Mr F wanted it and “operational parameters” were agreed. So, a meeting with the contractor was needed to agree these.

37. Mr F continued to express dissatisfaction and would not agree to meet with the contractor given that he considered the statement about children being unsupervised remained unjustified. In June 2021 the contractor wrote to him and said “we do not intend to allow you to hire the facility due to your failure to comply with our reasonable requests and for behaving inappropriately to our colleagues in the manner in which you communicate whilst on site and via emails and phone calls”. It also said Mr F had refused to meet to discuss operational issues.
38. In general comments in reply to my enquiries the Council has said that Mr F has ‘harassed’ staff working at the leisure centre, including via WhatsApp messages, and falsely accused the site General Manager of giving him COVID-19. Mr F denies this.
39. In his comments during this investigation Mr F has given me his version of events of what happened in October 2020 that he believes led the contractor to make the comment about ‘children wandering the corridors’. He explained to me the measures the club took to ensure no child was left unsupervised with an adult. So when children needed the toilet a member of staff would watch them enter and leave the toilet from a doorway where that member of staff could also be seen. He said on this one occasion a child had spent longer in the toilet than normal but was never unsupervised under this arrangement. Mr F says on the day he did not see any staff on reception but believes the corridor was viewed on CCTV, where he and his members of staff may have been ‘off camera’.
40. Mr F has also given me a statement from a member of his staff which provides a similar account.
41. Mr F has said the decision of the contractor to suspend his bookings twice in quick succession led him to think the contractor was looking for an excuse to end the bookings. He also considers the Council was following its own agenda in wanting him to stop using its facility and has pointed to an internal email where the Council said if it met with Mr F it wanted to use that opportunity to put its case to him. Mr F’s view is that any meeting to discuss his complaint would therefore have been used as an ‘ambush’ to discuss other matters.

My findings

42. I have considered first the procedures in place when third parties hire leisure facilities from the Council’s contractor and what happens if the contractor has concerns about the third party’s conduct. I find there is a lack of clarity. There is nothing in the booking form that explains how the contractor will raise concerns, what sanctions they may impose, nor whether a hirer can appeal or request a review of a sanction. That is a fault.
43. Also, while the hirer is told they can make a complaint, the contractor has no ‘clearly defined complaints policy’ as required by its contract with the Council. In particular it is not clear what happens if someone remains dissatisfied once they have had a discussion with the Contract Manager. The policy does not explain if the Contract Manager will reply to them in writing. Nor does it explain how any response from the contractor may interact with the Council’s own complaint procedure. That too is a fault.
44. In addition, the Council complaints policy makes no mention of how it will deal with complaints made about contractors. It does not explain how its complaint policy and that of a contractor may interact. This too is an omission that justifies a finding of fault.
45. These are all learning points for the Council (see agreed actions below). But I do not consider these faults have on their own caused Mr F injustice. This is because he was nonetheless able to raise his concerns about the contractor with the Council which did respond to those concerns through its complaint procedure. I note that when it did so it explained each stage of that procedure to Mr F as well as signposting him to this organisation.
46. However, I consider there has still been some fault in how the Council has dealt with Mr F’s communications. The initial response to Mr F’s concerns in December 2020 was inadequate. It did not engage with his specific concerns about his bookings being suspended and the response of its contractor to his query about the basis for a suggestion that children had been reported wandering in the corridors.
47. This poor response was part of a pattern of early responses that failed to identify Mr F’s communications as a complaint about the contractor. So, the Council could have begun a complaint investigation under its complaint procedure much sooner.
48. I recognise the Council was focused on trying to bring Mr F and the contractor together to resolve their differences. Had the meeting in February 2021 not been cancelled then matters might have evolved differently. But I consider after the meeting was cancelled Mr F made clear he did not want to pursue a meeting until his complaint about how the ‘children wandering the corridors’ allegation was dealt with. The Council should have made clear it would look at this matter as part of a complaint and set out its timescale for a response.
49. While eventually the Council did treat Mr F’s communications as a complaint, the lack of clarity early on meant that its complaint handling suffered from an ongoing lack of focus. The Council failed to clearly distinguish Mr F’s complaint about the contractor from any concerns the contractor, or the Council, had about his contacts with the contractor or the Council. Its communications consistently conflated the two.
50. The Council did not establish early on some basic facts around Mr F’s suspension in October 2020. In particular around the reference to “children wandering corridors looking for the toilet” which was the main focus of Mr F’s complaint. It did not check what contemporaneous evidence the contractor held about the incident or incidents it referred to. It did not resolve the apparent discrepancy between this initial statement and the statement later given by the contractor’s member of staff which described only a single incident. It did not find out why the contractor had not sought to enforce the suspension. Nor how the other items on the list of concerns the contractor gave Mr F about his use of the leisure centre had been dealt with. The Council implied none of the concerns raised in October had been answered, when this was clearly not the case. Nor did it find out why the contractor had not answered Mr F’s complaint about ‘children wandering the corridors’ comment, of which it was clearly aware.
51. Then when it answered the complaint, the Council failed to set out its own thinking about this matter. It also wrongly gave the impression Mr F remained under suspension from the contractor, when this was evidently not the case.
52. There was a poor handling of Mr F’s complaint therefore and that justifies a finding of fault.
53. I have considered the consequences of this fault. I consider Mr F was caused some distress as uncertainty and put to unnecessary time and trouble. I made recommendations for how the Council could remedy this injustice in a way that I consider fair and proportionate, which the Council has agreed and these are set out below.
54. I also consider the Council’s poor complaint handling will have inevitably led to a deterioration in relations between Mr F, the Council and contractor. But I could not go so far as to say it caused the breakdown of Mr F’s hire of facilities with the contractor, with any consequence caused to his business as result. There are several reasons why I have come to this view.
55. First, it was Mr F’s choice not to engage with the Council on several occasions when it raised the contractor’s email of October 2020 – he missed the opportunity to explain his position on the matters raised and to share the response he had already given the contractor to its concerns.
56. Second, even though there is a discrepancy between the employee’s description of what happened in October and the statement around “children wandering corridors”, there was still a detailed description of an incident involving a single child giving cause for concern. This alone would be enough for the contractor and Council to check what procedure Mr F’s club had in place for supervising children during sessions. So, it was reasonable for the Council and contractor to want Mr F to engage about the general concern even if there remained some dispute over the detail. I find Mr F did not want to do this, staying focused instead only on his own concern.
57. Third, Mr F also chose to raise his concerns in a series of multiple emails in a short space of time to different members of staff. While this does not excuse the Council's failings, this approach may have contributed to its lack of focus at times.
58. Fourth, while I understand why Mr F is aggrieved with how the Council dealt with his communications, it was Mr F’s choice to reject the offer that he could resume bookings because of his dissatisfaction with how the contractor and Council dealt with his concerns. He rejected invitations to talk to the contractor about booking arrangements moving forward which he could have entered while still reserving the right to pursue his complaint about its earlier actions.
59. I note that in June 2021 the contractor decided it would not accept future bookings from Mr F. I do not propose to recommend it do anything different in view of Mr F's choice not to take up the earlier offers to enter discussion about resuming bookings. However, I take no view on whether the contractor is right to allege harassment by Mr F or inappropriate behaviour. No evidence has been provided to support those statements. While I could conduct further investigation I see no reason to do so in view of the pre-existing breakdown of relations between the parties.
60. I cannot reach the view that the Council and contractor chose to prevent Mr F from making future bookings because of a pre-determined bias against him. I recognise Mr F thought the two suspensions in a short space of time unfair. But clearly no attempt was made to enforce the second suspension. I am satisfied the contractor only decided not to accept bookings from Mr F at a time when there seemed no meeting of minds on how bookings could resume.
61. I recognise that following the Council’s unsatisfactory investigation, Mr F still wants to know more about what caused the contractor to say there were children ‘wandering the corridors’ in October 2020. But I can find no reason to carry out further investigation into this matter.
62. While I can see a suggestion Mr F left children unsupervised could be potentially damaging to his reputation; there is nothing to say this was the case. First, because the contractor did not enforce any sanction and there was nothing approaching a formal investigation as might be expected in a case where serious child safeguarding concerns are raised. So, Mr F never suffered any direct consequence from the suggestion. Second, while parents came to hear of the suggestion, this was at Mr F’s doing, not because of the actions of the Council or contractor.
63. Added to which I do not consider we are likely to establish definitive facts about what happened. I am satisfied something happened that gave rise to the email sent by the contractor in October 2020. There are differing accounts of exactly what happened. But on Mr F’s own account and that of contractor’s employee made in February 2021, there is agreement that one child left the club session and spent a longer than usual amount of time in the toilet. Any suggestion more than one child was left unsupervised is not supported by any evidence. So, all that remains is disagreement about whether that child was, in fact, unsupervised. That is not something I consider I can resolve.

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Agreed action

64. The Council accepts the findings set out above. To remedy the injustice identified it has agreed that within 20 working days of a decision on this complaint it will:
1. apologise to Mr F accepting the findings of this investigation;
2. pay Mr F £250 in recognition of the distress and the unnecessary time and trouble he has been put to.
65. Within three months of a decision on this complaint the Council and contractor have also agreed they will:
1. redesign the booking hire form used by the contractor to make clear what will happen if the contractor believes the hirer to be in breach of any of the rules of hire;
2. revisit the contractor’s complaint policy to explain in more detail the role of its Contract Manager and how any user of its services can engage the Council’s complaint procedure if dissatisfied with their response;
3. have reviewed the Council’s complaint policy to include a section on how complaints about contractors interact with its complaint policy and any separate complaints policy used by its contractors, subject to any necessary approval from its cabinet.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman