Summary: We will not investigate Mr Y’s complaints about trespass and the determination of his boundary because these are matters which we consider should be settled by the courts. Furthermore, the matter has been ongoing for more than 12 months and Mr Y could have complained to us sooner. We will not investigate Mr Y’s claim for criminal damage because we cannot determine whether a crime has occurred and there are other agencies better placed to investigate. Mr Y also complains about other related matters, including the Council’s conduct and its handling of his complaint, but we have not investigated the underlying complaint so we will not investigate the related matters. However, we have investigated the Council’s application of its policy about ‘Unreasonable and Unreasonably Persistent Complainants’ and in our view, there is fault causing injustice to Mr Y.

The complaint

1. Mr Y complains about the Council’s actions in relation to a longstanding dispute about a boundary. He also says the Council has trespassed and damaged his property. In his complaint to the Ombudsman, Mr Y also raised the following issues:
• poor record keeping
• failure to take action and to explain delays
• failure to follow procedures or the law
• poor and delayed communication
• giving misleading information
• failure to investigate complaints and offer a full written response
• failure to act fairly and proportionately with impartiality, courtesy, accountability and transparency
• breaches of data protection
• wrongly labelling him as a persistent complainer
2. Mr Y says the Council has caused unnecessary and avoidable alarm, distress and inconvenience for which he seeks remedial action.

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What I have investigated

3. I have investigated the Council’s application of its ‘Unreasonably Persistent Complainants’ policy. I have not investigated the other parts of Mr Y’s complaint for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. Before reaching this decision, I discussed the complaint with Mr Y and considered information he submitted which included copies of letters from the Council.
9. I considered the Ombudsman’s ‘Guidance on Jurisdiction’ the ‘Investigation Manual’ and any caselaw relevant to this complaint, which I have cited where necessary in this statement.
10. I issued my provisional findings in a draft decision statement and invited comments from Mr Y and the Council which I considered before making a final decision.

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What I found

What should happen

11. The Council has a policy which sets out how it will deal with ‘Unreasonable and Unreasonably Persistent Complainants’. The main principles of that policy are as follows:
• The Council will limit the contact of complainants who are unreasonable and unreasonably persistent. When doing so, the decision will be taken by the relevant Head of Service and in conjunction with their Director.
• The Council’s decision will normally follow a prior warning to the complainant.
• Any restrictions imposed by the Council will be “appropriate and proportionate” and may include the following:
1. limiting the person to one means of contact
2. requiring the person to communicate with only one named officer
3. restricting the number and duration of telephone calls
4. refusing to log, investigate or reply to further complaints about the same matter.
5. acknowledging receipt of correspondence but informing the person that future correspondence will be read, filed but not acknowledged.
6. Referring the person to the Council’s Independent Complaints Investigator or the Ombudsman.
• The Council will explain what action it is taking, why it is taking it and how long the action will last. The Council will refer cases to its Monitoring Officer for review after one year.
12. The Ombudsman’s ‘Guidance on managing unreasonable behaviour’ recommends that councils should also write to the complainant with a copy of the policy to explain what the complainant can do to have the decision reviewed.
13. Our guidance also says, “When imposing a restriction on access, you should have a specified review date. Limits should be lifted, and relationships returned to normal unless there are good grounds to extend them. You should tell the complainant of the outcome of your review. If limits are to continue, explain your reasons and state when the limits will next be reviewed”.

What happened

14. The Council applied its ‘Unreasonable and Unreasonably Persistent Complainants’ policy on 23 January 2020 to restrict Mr Y’s contact to one named senior officer. In its letter to him, the Council said,

“… we have taken the decision that the person who should take overall responsibility for your complaint is [Director’s name removed]. [Name] will be sending our response to the issues you have raised”.

“We have taken the decision to apply the policy here due to the high volume of correspondence we have received from you over the last month. Because many of your enquiries reference your previous extensive correspondence with Cambridge City Council, it is our view that answering the letters as discreet enquiries would require significant and inappropriate levels of resource. By addressing your enquiries together we will be able to avoid duplication of issues you have raised with us several times over the course of our correspondence”.

15. Mr Y approached the Ombudsman in January 2021; not only to raise concerns about the Council’s application of its policy, but also for an impartial review of the underlying matters which were the subject of his contact with the Council.

Was there fault in the Council’s actions causing injustice to Mr Y?

16. The Ombudsman finds fault with the Council’s application of its policy for ‘Unreasonable and Unreasonably Persistent Complainants’. Although the Council explained to Mr Y what the restrictions are, and the reasons for imposing them, it failed to:
• advise how long the restrictions would be in place for; and
• provide Mr Y with details of how to request a review of the decision.
17. I am mindful the restrictions placed on Mr Y’s contact are not severe; the Council has not prevented him from contacting the Council altogether nor has it limited Mr Y to one method of contact for a restricted period of time (i.e., telephone calls for just 20 minutes). Therefore, in my view the injustice caused by the fault identified above does not require a significant remedy. However, the Council should complete the actions I have listed below to ensure that Mr Y is clear about the timescales of the restrictions. When doing so, the Council should consider that Mr Y has already been subject to restrictions, without review, for more than 12 months.

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Agreed action

18. Within four weeks of my final decision, the Council should provide evidence to the Ombudsman that it has:
• Written to Mr Y to clarify how long the restrictions will be in place and provide details for requesting a review of those restrictions.
19. Within six weeks of my final decision, the Council should also:
• Review its ‘Unreasonable and Unreasonably Persistent Complainants’ policy and consider whether it requires updating to ensure consistency with the Ombudsman’s ‘Guidance on managing unreasonable behaviour’.

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Final decision

20. I have completed my investigation with a finding of fault and injustice in Mr Y’s complaint about the Council’s application of its ‘Unreasonable and Unreasonably Persistent Complainant’ Policy. The agreed remedy is a proportionate settlement for the injustice caused.
21. I have not investigated Mr Y’s other complaints for reasons which I have explained in the following section of this statement.

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Parts of the complaint that I did not investigate

Boundary dispute and trespass

22. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can, and should, investigate. I have not investigated Mr Y’s underlying complaint because disputes about trespass and boundary lines are matters of tort which are usually settled by the courts. I consider it is reasonable for Mr Y to pursue these matters via the appropriate legal channels as the Ombudsman could not determine whether the Council has encroached his boundary or trespassed upon his land.
23. I am also mindful the Council has previously issued Mr Y with three separate letters before action. This supports my view that the matter should be determined in court if the Council and Mr Y are unable to seek a resolution.
24. Mr Y may wish to consider seeking independent advice if he intends to pursue a claim against the Council.
25. Furthermore, some of the actions referred to happened more than 12 months ago and Mr Y has not explained why he was unable to complain about them sooner. The Ombudsman has therefore discontinued our investigation into this part of Mr Y’s complaints using the powers granted by sections 26B and 26(6)(c) of the Local Government Act 1974.

Criminal damage

26. The Ombudsman will not consider whether the Council is responsible for criminal damage. We do not have jurisdiction to consider whether a crime has occurred, and there are other agencies which investigate such matters. The Ombudsman has discontinued our investigation into this part of Mr Y’s complaint using its powers granted by section 24A(6) of the Local Government Act 1974.

Officer conduct, correspondence, transparency and accountability

27. Separate to the underlying complaints, Mr Y also asks the Ombudsman to investigate the conduct of Council officers as summarised in paragraph one of this statement.
28. Mr Y describes how, in his view, these matters are separable from the underlying complaint which the Ombudsman has not investigated. However, the courts have decided that we cannot investigate a complaint about any action by a council concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)). ­­
29. For this reason, we have also discontinued our investigation into this element of Mr Y’s complaint.

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Investigator's decision on behalf of the Ombudsman