Summary: Ms C says the Council failed to protect her from assault in a Council-owned leisure facility and failed to handle her subsequent complaint properly. The Council was responsible for matters taking place within the facility and is at fault for failures in the contractor’s complaint handling. However, it is not at fault for management failures that may have exacerbated the injustice. There is insufficient evidence to show that the management was at fault and these were decisions over which the Council had no control.

The complaint

1. The complainant, who I have called Ms C, was assaulted when using a leisure facility which is owned by the Council and run by a leisure contractor, Everyone Active. Ms C says the Council is at fault for:
1. The lack of action by management on the day in question to protect her and members of staff from racial discrimination, assault and abuse;
2. Poor complaint handling by Everyone Active including a failure by Everyone Active to provide her with a copy of its complaints procedure on request; and
3. Poor complaint handling on its own behalf once she complained to the Council.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
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’. 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 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

6. I spoke to Ms C who sent me her papers relating to the incident. I wrote an enquiry letter to the Council requesting further information and evidence. I considered all the information and applied the relevant law.
7. I sent copies of drafts to the Council and Ms C. I considered their responses and wrote two further drafts incorporating comments.

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What I found

8. S.26(1) of the Local Government Act 1974 says the Ombudsman has authority to investigate:
1. alleged or apparent maladministration in connection with the exercise of the authority’s administrative functions
2. an alleged or apparent failure in a service which it was the authority’s function to provide; and
3. an alleged or apparent failure to provide such a service
9. The Ombudsman interprets any function which is provided by the authority or by contractors on its behalf as being ‘functions’ of that authority.
10. The events giving rise to this complaint took place in a Council-owned leisure facility (‘the gym’). In 2016, the Council entered into a contract with Everyone Active to run seven leisure facilities including the gym.
12. In its response to my enquiries, the Council described Everyone Active as ‘a leisure contractor’. I find this is a Council function and so the Ombudsman has authority to investigate the events in question.

What happened

Background

The incident

13. In late November 2017, Ms C was visiting the gym for a spa day with a friend when she was assaulted by a member, Ms A. It was an unpleasant and protracted verbal assault and included a short physical confrontation when Ms A tried to take Ms C’s mobile phone. Members of staff intervened. Ms A attacked one member of staff physically and abused another. Ms A called the police and then left. The gym later revoked Ms A’s membership.
14. Ms C says that there had been a previous incident involving Ms A at the gym which had involved her shouting and being abusive.
15. She says, ‘I believe that Miss X’s behaviour was racist and in breach of UK Legislation, Common Law and [the] Council and Everyone Active’s Policy relating to race discrimination, harassment and victimization. Furthermore, her behaviour was in breach of my Human Rights. I felt deeply concerned that the Management at [the gym], with the evidence of discriminative behaviour and views (historic and current) allowed this woman to continue to enjoy the facilities’.

The complaint

16. Ms C complained formally to the gym management the next day naming the Council as being jointly culpable. She said Ms A had acted similarly a few weeks earlier so management should have revoked her membership then.
17. She said she wanted an independent investigation and an apology. She also wanted confirmation that management had revoked Ms A’s membership.
18. Ms C says the complaint handling was poor. She says she phoned and emailed many times. She repeatedly asked for a copy of the company’s complaint’s procedure. The company finally dealt with her stage one complaint in September 2018, ten months after the incident.
19. In its complaint response, in September 2018, Everyone Active said:
1. The gym had involved the police and understood Ms C would be prosecuted;
2. It apologised for the fact Ms C and her friend had witnessed Ms A’s behaviour but said the gym had banned Ms A and fully cooperated with the police.
3. It said Ms C could find its complaints procedure on its website.
4. It offered Ms C and her friends a free spa visit in recognition of their distress.
20. Ms C was not satisfied with this response and asked Everyone Active to escalate her complaint to stage two of its complaints procedure.
21. Everyone Active contacted the Council in mid-October 2018. The Council then investigated the matter using stage one of its complaints procedure.
22. The investigating officer wrote back in mid-November 2018. He said:
1. the Council took allegations of racism seriously;
2. Everyone Active took too long to investigate the complaint. It had learned lessons from the incident;
3. A year had passed since the incident. Therefore, witnesses’ memories of the incident had faded;
4. A staff member told Ms C that Ms A had been involved in a similar incident two weeks before this incident but there was no evidence on file to support this;
5. Everyone Active called the police on the day in question and had since tried to contact the police about the incident on several occasions;
6. The gym staff had, eventually, written to Ms C and had apologised and offered a free spa visit as a gesture of goodwill. This was an appropriate response.
23. Ms C requested her complaint by escalated to stage two. She said:
1. She was unhappy with the way the gym had dealt with her complaint. It had taken ten months and no one had told her what lessons had been learned.
2. Although there was no written evidence of a previous incident involving Ms A, Ms C had heard of two such incidents from gym members.
3. Ms A had not been asked to leave the gym on the day in question but had left voluntarily.
4. The gym had not called the police. Ms A had done so and had run off when they arrived.
24. She later clarified that her stage 2 complaint concerned:
1. Inaccuracies in the facts stated in Stage one;
2. The delay in the gym and Everyone Active addressing her initial complaint;
3. A lack of clarity about the lessons learned and actions taken as a result of this incident;
4. A failure to explain why the gym and Everyone Active had not originally responded to the complaint;
5. The failure to protect her from racial abuse on the day of the incident;
6. The failure to prevent the incident escalating;
7. A failure to provide a copy of the Everyone Active complaints procedure;
8. A lack of clarity of how the matter was to be dealt with’
9. The absence of written communication about the complaint;
10. Failure of manager to explain why she believed matter had been dealt with in May 2017.
25. The Council responded on 6 December 2018 partially upholding Ms C’s complaint. It said:
1. The gym and Everyone Active’s delay in dealing with Ms C’s initial complaint was unacceptable. However, there was no evidence that it was deliberate. Once the Council became involved, it dealt with the complaint quickly.
2. Despite the delay, Everyone Active’s handling of the complaint had been otherwise appropriate.
3. There had been some minor inaccuracies in the Council’s stage one response.
4. The offer of a complementary spa day had been an appropriate response to the initial complaint.
26. Ms C came to the Ombudsman.

Was there fault causing injustice?

Failure to protect Ms C and staff members from assault and abuse

27. Ms A’s statement of complainant to the Ombudsman suggests she believes that, because management knew that Ms A had been abusive on a previous occasion, it should either have ejected her more quickly after the incident occurred.
28. While I accept there was a previous incident, I do not know the details and therefore cannot say how management should have reacted to it. The fact that it did not cancel her membership or bar her after the previous incident cannot fairly be seen as an endorsement of or indifference to racism or violence.
29. Turning to management’s actions on the day, it was reacting to a difficult, unexpected event. Ms C believes management should have ejected Ms A more quickly. However, we cannot find fault with a council’s (or contractor’s) decision simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
30. Again, I cannot find that a failure to eject Ms A was caused by indifference to Ms C’s, or other staff members’, human rights or safety. It may be, for example, that management considered ejecting Ms A but felt it might exacerbate the crisis. I cannot find that the Council was wrong to act as it did. I do not find fault.

Everyone Active complaints handling

31. It is quite clear, as the Council has accepted, that Everyone Active’s complaints handling was inadequate. It failed to provide Ms C with a copy of its complaints procedure on request. It also failed to respond properly to Ms C’s initial complaint for ten months. A manager then found that Ms C had received a satisfactory complaint response when she had not. This complaint handling was chaotic and inadequate which was fault.
32. This caused Ms C an injustice in that she pursued the gym for nearly a year before receiving a response to her complaint. The Council says Everyone Active has now remedied problems with its complaints system however, there is still no statement of its complaints procedure on its website.
33. Further, Ms C says the remedy offered to her by the gym, a free spa day, was inappropriate as she did not wish to return there. She also says she lost the value of spa treatments she booked on the day but did not attend because of the incident.

Council complaint handling

34. Ms C also says that the Council’s own complaint response was inadequate. She says that there were errors in the facts as found in the Council’s stage one complaint response.
35. However, it was hardly surprising, so long after the event, that Council complaints handlers had some difficulty in gathering information. Overall, the Council’s complaint response was robust, proportionate and fair. I do not find fault.

Agreed action

36. Within one month, the Council has agreed to:
1. Apologise to Ms C; and
2. Pay her £100 in recognition of the failures in complaint handling and the time and trouble Ms C was put to;
3. On provision of proof, refund the cost of any treatments that Ms C booked but could not enjoy because of the incident.
37. Within three months, the Council has agreed to:
1. Ensure that Everyone Active has a written complaints procedure published on its website;
2. Ensure that Everyone Active staff members and management are aware of the policy and know where to find it.
3. Ensure that Everyone Active provides Ms C with a suitable remedy either a similar day at one of its other facilities or, if this is not possible, the financial cost of such a day; and
4. Write back to the Ombudsman to inform us of the actions taken.

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Final decision

38. I have completed my investigation. I have found the Council at fault for the failures in complaint handling of its leisure contractor. The Council has accepted my recommended remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman