Summary: The Council did not explain its reasons for refusing Ms B access to an adult education course. The Council will apologise and facilitate Ms B to re-sit the exam or take the course elsewhere, should she wish.

The complaint

1. The complainant, who I will call Ms B, says her tutor behaved inappropriately. The Council has failed to adequately investigate her complaint and has penalised her for making a complaint by no longer letting her attend the course. Ms B says she has been left with severe stress by the actions of the tutor, especially by the overstepped boundary of physical contact.

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The Ombudsman’s role and powers

2. 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)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. Sometimes we are unable to make a finding.
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 considered information provided by Ms B and the Council, including statements from third parties. I shared a draft statement with Ms B and the Council and considered comments in response.

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What I found

6. Ms B went to an adult education course, she complained to the Council about the following issues:

• The tutor made lots of jokes and was always laughing and distracting the class.
• The tutor said they had looked up Ms B’s age.
• The tutor would place their hand on Ms B’s shoulder uninvited and for longer than necessary.
• The tutor would not give Ms B their e-mail address despite giving it to another student.
• The tutor shouted at Ms B and accused her of throwing herself at them in the street.
• The tutor commented to the exam invigilator how well one of their students had done on the course.
• The tutor said they had looked at the exam papers, and they made comments about how Ms B and another student had done.
• There were noisy conditions in the exam.

7. Ms B did not raise any concerns during the course and gave positive feedback on feedback forms. Though Ms B says these comments were aimed at the teaching assistant as that was her main instructor. I recognise some people do not feel confident to raise concerns until events are over, but really the best time is when change can be affected to overcome your concerns at the relevant time. The Council explains it could have mediated with Ms B and the tutor.
8. The Council responded to the complaint but I find it did not address all the issues, it said it understood Ms B would not want to return to the class. Ms B did not think the Council had taken it seriously enough; she had never said she did not want to attend; she did wish to attend the class the following term.
9. The Council then says it completed a full investigation and responded to Ms B saying it had taken action to ensure high standards. I find the Council did not specify the findings of its investigation or what action it had taken. The Council decided Ms B should not attend classes taught by this tutor; it said it was in her best interests but gave no reason for this decision.
10. The Council has given more details on Ms B’s specific complaints in response to my enquiries, which are detailed under the headings below.

Distracting the class

11. Ms B says the tutor was constantly making jokes, which she found distracting and unprofessional.
12. The Council accepts the tutor has a jovial manner. The Council says the tutor is very encouraging and supportive; they have received no other complaints about the tutor’s conduct.
13. Ms B says the tutor did stop the jokes when she raised it. This appears to be an issue regarding Ms B’s learning style not being suited to the tutor’s style, as no other students raised concerns. I cannot conclude the tutor’s conduct amounted to fault. When Ms B raised her concern, the tutor changed behaviour to suit Ms B’s learning style. I find no fault.

Looking up age

14. Ms B says the tutor said they had looked up her age on their records. The Council says the tutor said they could look up Ms B’s age, but not that they did.
15. I do not know the context of why the tutor said this, I cannot make a finding of fault.

Physical contact

16. Ms B says the tutor would often put their hand on her shoulder, without checking if this was ok. The tutor would leave their hand there for longer than necessary. Ms B says this was unexpected in a professional environment, has had a profound impact on her mental health and left her with severe stress. Ms B says she told the tutor many times not to touch her without being invited, but it still happened.
17. The Council says when Ms B requested the tutor not put their hand on her shoulder, they respected that and did not do it again. The line manager has spoken with the tutor regarding the use of physical contact.
18. Some people openly express affection and emotion and some people do not. In a professional environment you must understand that not everyone will be comfortable with affection or reassurance by physical contact. It is best to err on the side of caution; you’re always taking a risk by making physical contact. The Council has dealt with this issue appropriately by raising it with the employee in their supervision meeting.

E-mail address

19. The Council says the tutor did not give out their e-mail address to any students. An administrative team gave the tutor’s e-mail address out, but that practice has now stopped.
20. Ms B says the tutor told another student to e-mail them, so she asked for the e-mail address also and was told she could not have it. I can understand this would be upsetting for Ms B, to feel she was treated differently. The tutor should have told the other student the e-mail address was not to be used. The Council could have resolved this issue much sooner, and not left Ms B feeling discriminated.

Shouting

21. Ms B says the tutor shouted at her in the classroom. The teaching assistant was present, and says the tutor raised their voice but was not shouting. There is no evidence to support the tutor shouted at Ms B. The teaching assistant says the tutor remained professional. I make no finding of fault.
22. Ms B says the tutor accused her of throwing herself at them in the street; the tutor denies this. Ms B and the tutor agree they had contact in the street after Ms B told her tutor some good news. The tutor says Ms B hugged them; Ms B says it was a brief touch on the shoulder. There is no evidence to support either version. I cannot make a finding of fault.

Comments to exam invigilator

23. There is no evidence to support the tutor said anything untoward to the invigilator. I cannot make a finding of fault.

Looking at exam papers

24. The tutor has accepted they looked at the completed exam papers. The line manager has discussed this with the tutor; the error will not be repeated. The Council has taken appropriate action to address the fault.
25. There is no evidence to support whether the tutor made comments about how well Ms B and another student had done on the exam. I cannot make a finding of fault.

Exam conditions

26. Ms B says the door was very noisy, with people coming in and out. This distracted her and affected her ability to concentrate.
27. The exam invigilator explains people did leave and re-enter the room, escorted and in accordance with regulations. Ms B was sat by the door so may have been more disturbed by this than others. There were empty desks available and Ms B could have asked to move. The Council will request that exam support staff hold doors until they shut to make as little noise as possible when people come and go.
28. It is not fault for people to be escorted in and out of the room. I understand that Ms B found it noisy and disruptive, but I do not make a finding of fault. There is no evidence Ms B raised her concerns at the time, to enable conditions to be changed.

Was there fault causing injustice?

29. Complaints should be taken as a learning opportunity and be used to drive improvements. People should not be discouraged from making complaints. In this case the Council has accepted some errors by the tutor and has taken action to improve its service, so learning has come from Ms B’s complaint.
30. Ms B had wished to attend the same course, but the Council says she cannot attend a course with that tutor. The Council said it was in Ms B’s best interests but did not explain why it thought this was the case when she was happy to be taught by the same tutor if her issues were addressed. On reflection Ms B has decided she would not want to be taught by this tutor, despite her concerns about travelling elsewhere due to ill health.
31. The Council now explains the true reason for Ms B not to attend is that some of the wording of Ms B’s complaint was very personal towards the tutor and has affected the tutor’s wellbeing. The Council says Ms B’s language in the complaint, and the way it is used, is unreasonable and unacceptable. The Council says it will apologise for its failure to properly explain this to Ms B.
32. The Council should have been open and honest about the true reasons for its decision that it was in everybody’s best interests for Ms B to not attend a course taught by the same tutor. The tutor’s teaching style was not a good fit for Ms B’s learning style, and Ms B’s comments have affected the tutor’s ability to teach her in future. If the Council was honest about the actions it had taken in response to the complaint, and about its views on why Ms B should not attend the course, then Ms B could have been assured the Council had properly considered her complaint.
33. Ms B apologises if her language has been interpreted as being a personal attack on the tutor. Ms B explains that was not her intention and she was just raising concerns in the way she saw them. Ms B says if the Council had told her this at an earlier time, in the same way it says she should have raised concerns sooner, then perhaps the issues could have led to a more mutual outcome and been successfully mediated.
34. The Council has made a properly reasoned decision, and there is no reason for the Ombudsman to question or criticise the decision. The Council has a duty to its staff as well as to its citizens. The agreed actions below mean the staff member is protected, and Ms B can complete her course if she wishes.

Agreed action

35. To recognise the impact of its failing, the Council will:
1. Apologise to Ms B for failing to properly explain the reasons why she could not attend a course taught by this tutor in future. And for failing to tell her its view that her conduct was unreasonable and unacceptable.
2. Offer to arrange Ms B to re-sit the exam in quiet conditions if she revises from her notes from the course she completed. If Ms B would rather re-sit the course the Council will refund her the public transport travelling expenses she incurs getting to one of the other courses in the County. Ms B will need to produce her bus or train travel ticket when she attends the course, and the reception will refund her with cash weekly. The Council would need advance warning so it could ensure the location has the cash, and it will need to keep the tickets for audit purposes. If it is a return ticket, Ms B would need to bring it the following week for her refund so that the Council can keep the evidence of travel. The cash refund will therefore be a week behind. If Ms B has a computer at home, she could access the Council’s virtual classes. Ms B does not currently feel able to re-sit the exam or the course, the Council should hold this offer open for the next six months should Ms B decide she is able to study.
3. Remind all staff to be open and honest about the reasons for their decisions.
36. The Council should complete the agreed actions within one month of the Ombudsman’s final decision. The Council must provide evidence of its compliance.

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Final decision

37. I have completed my investigation on the basis the agreed actions are enough to acknowledge the impact on Ms B, and prevent future problems.

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Investigator's decision on behalf of the Ombudsman