Summary: Mr X complained about the Council’s decision to ban him from using its leisure centre. He said it then failed to respond to his complaint and did not meet with him as offered to discuss his use of the facilities. The Council was at fault for not following its policy. Its policy is also at fault as it does not consider a service user’s right to appeal. To remedy the injustice caused, the Council has agreed to review its policy and ensure Council officers are reminded to follow it. It will also offer Mr X an opportunity to appeal its decision to ban him from its leisure centre.

The complaint

1. Mr X complained after the Council stopped him from using its leisure centre (the Centre). He said the Council then:
• Failed to respond to an email he sent in November 2018 asking it to meet to discuss reinstating his membership.
• Meet with him to discuss how he could use the Centre again, as offered in the Council’s complaint response.
2. Mr X said the Council’s decision to ban him from the Centre has resulted in financial hardship. He said his physiotherapist was based at the Centre and he has had to use a different provider at a higher cost.

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The Ombudsman’s role and powers

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. 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

5. I discussed the complaint with Mr X and made enquiries of the Council. I also considered the Council’s response to Mr X’s complaint.
6. The Council and Mr X both had the opportunity to comment on my draft decision.

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What I found

7. Councils can restrict access to facilities or buildings, if this is done with good reason and officers have followed and applied the correct process. The Ombudsman expects a council to explain any ban in writing and explain when it will review the ban. We would expect the council to review the ban within a reasonable period, normally every six months. If a council decides a ban should stay in place, it should explain why it has decided not to lift it. The Council should give the complainant the opportunity to appeal any ban.
8. The Council displays posters throughout all its buildings including the Centre; these tell service users that it does not tolerate violence or aggression. Any form of abuse could result in it withdrawing services. It describes acts of violence and aggression as any incident where a staff member is abused, intimidated, threatened or assaulted by another person.
9. The Council’s ‘Avoidance of Violence and Aggression to Staff’ policy says it will:
• Record and investigate all incidents, threat or actual violence at work, and take any remedial action that may be necessary;
• Write to members of the public when their behaviour is unacceptable following advice from the Council’s legal services.
10. The Council may restrict access to services but states its lawyers must always be consulted in these cases.
11. The Council requires employees to follow its violence and aggression reporting procedure and complete a form if they are involved in an incident. This must be completed where the employee perceives themselves to be, or is actually:
• the victim of aggressive verbal abuse; and
• intimidated or threatened.
12. This process allows the Council to consider the health and safety of its employees and identify potentially risky members of the public.
13. The Council has a single stage complaints procedure. It says that after it has received a complaint it will respond within 10 working days.

What happened

14. In August 2018, Mr X was involved in an incident with a staff member at the Centre. The Council’s incident form said as Mr X approached the reception desk, he pointed an object at the receptionist and asked them to hand over the money in the till. The Centre contacted the Police who arrested Mr X.
15. The Council said that following the incident it verbally banned Mr X from using the Centre. Mr X returned to the Centre two days later to see his physiotherapist. Mr X said the Police contacted him after that visit and told him they would arrest him if he returned to the Centre. The Council cancelled Mr X’s membership with his agreement. Mr X said he asked what would happen once the Police completed their investigation but said the Council did not give him a clear answer.
16. Mr X said that following the Council’s ban he had to start using a different physiotherapist who charged more money than the one he saw at the Centre.
17. The Police decided to take no further action against Mr X. At the end of November 2018, Mr X complained to the Council. He said he thought the incident had been a misunderstanding and the Police had decided not to charge him. He asked if he could discuss the Council lifting its ban.
18. The Council did not respond to Mr X. It told me the Service Manager who had dealt with the incident was not at work. It said because of the Police involvement, the complaints team thought its legal team were responding to Mr X.
19. In April 2019, Mr X contacted his MP as he had not had a response from the Council. They wrote to the Council highlighting the lack of response.
20. On 30 April 2019, the Council wrote to Mr X and apologised for the time taken to respond to his complaint. It said it had reviewed its records of the incident and found that Mr X’s behaviour was “unacceptable, unwarranted and on the border criminal”. It said the Police had denied him access to the Centre and to save Mr X money, it had cancelled his membership with his agreement. The Officer completing the complaint investigation was the same Officer who had previously spoken to Mr X and stopped him from using the Centre.
21. The Council did not uphold his complaint. However, it offered to meet with Mr X and look at how he may be able to use the Centre again.
22. Following the Council’s complaint response, Mr X said he spoke to the Council who agreed to arrange a meeting to discuss his membership at the Centre. However, it failed to call him back. The Council said Mr X was meant to contact it back to arrange a meeting. The Council does not have records of that telephone conversation.
23. In response to my enquiries, the Council said it operates a zero-tolerance approach to violence and aggression towards staff and “considering what occurred and the impact this has had on the facility and the receptionist, the Council stood by its original decision to bar [Mr X]”.
24. In response to my draft decision, the Council said it did not officially ban Mr X from the Centre. It said the Police told Mr X not to use it or he would be arrested. It said that if the Police had not banned Mr X then the Council would have taken advice from its legal service and put in a ban in place.

My findings

25. The Ombudsman cannot question whether the Council’s decision to ban Mr X from using the Centre was right or wrong, the Council was entitled to make that decision. However, the Ombudsman can consider if there was any administrative fault in how the Council made its decision.
26. Following an incident where a member of staff is involved in a violent or aggressive incident, the employee involved must complete a form describing what took place and that should be sent to the Council’s health and safety service. The Council should also complete a full investigation into what happened.
27. The incident form was not completed by the staff member directly involved in the incident; the incident form was not completed at the time of the incident; there was not a full investigation and the Council’s health and safety service were not involved. That was fault. It meant the Council does not have full records of what took place, including Mr X’s perspective of the incident. That information is needed to review any future decision making about the ban.
28. The Council’s policy states that its legal service must be consulted about any restrictions to service. The Council did not consult with legal services after it banned Mr X from the Centre. In response to my draft decision the Council said Mr X was not officially banned from the Centre by the Council, therefore the Council did not take legal advice. It said it stopped his membership with his agreement.
29. It is not the Police’s responsibility to decide who can access the Council’s facilities but the Council’s. Any restrictions made by the Police would be time bound and relate directly to their investigation. The Council should have followed its own procedures and consulted its legal team. It failed to do that. That was fault.
30. The Council’s policy states that it will write to members of the public whose behaviour is unacceptable after taking legal advice. The Council verbally banned Mr X but did not send him a letter explaining the ban. The Council was at fault.
31. The Ombudsman expects councils to offer a service user a right to appeal if they are banned from using public facilities. The Council’s policy does not address a service user’s right to appeal. That was fault.
32. The Ombudsman expects the Council to review any decision to ban a service user from its facilities at regular intervals. The Council has not agreed to review its decision to ban Mr X from the Centre. The Council was at fault.
33. The above faults have cause Mr X an injustice. It has meant he has an indefinite restriction in place preventing him from using the Centre, with no right to appeal or review.
34. Although there was administrative fault in how the Council made its decision, that does not mean that if the Council had followed the correct process it would have allowed Mr X to continue to use the Centre. Therefore, the Council is not responsible for any increased physiotherapy costs experienced by Mr X.
35. The Council has accepted that it did not respond to Mr X’s complaint in November 2018 until April 2019 and apologised for that. That delay of five months was fault. That has caused Mr X an injustice as he went to avoidable time and trouble of having to contact his MP. The Council’s apology remedies the injustice caused.
36. There is a difference of view between Mr X and the Council as to who was responsible for contacting the other back to arrange the meeting to discuss Mr X’s use of the Centre. Mr X could have made further contact with the Council if he wanted to pursue that meeting regardless of who had agreed to contact who. The Council was not at fault.

Agreed action

37. Within one month of my decision, the Council has agreed to:
• take advice from its legal services and write to Mr X to confirm how he can appeal the ban and how often it will review the ban. The appeal should not involve any Officers involved in the original decision making.
• Ensure all officers are aware of the Council’s reporting procedure within its ‘Avoidance of Violence and Aggression to Staff’ policy.
38. Within three months of my decision, the Council has agreed to:
• Review its policy so that it addresses appeal rights and review procedures for people banned from facilities and premises.

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Final decision

39. The Council was at fault for failing to follow its policy after it stopped Mr X using its leisure centre. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman