Summary: We found the Council was at fault in reaching its decision Mrs X was an unreasonably persistent complainant. The Council’s decision caused Mrs X distress. To put matters right, the Council agreed to apologise to Mrs X and review its decision.

The complaint

1. Mrs X said the Council:

• unfairly determined she was a persistent and unreasonable complainant based on flawed evidence; and
• failed to give her a right of appeal against its decision.

Mrs X said the Council’s decision caused her great distress. Mrs X wanted the Council to apologise; admit it used flawed evidence; and allow her to appeal the decision.

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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. 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)
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 have:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information about the complaint with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

6. The Council adopted a procedure for dealing with unreasonably persistent complainants and unreasonable complainant behaviour (‘the Policy’). The Policy defined ‘unreasonable’ and ‘unreasonably persistent’ complainants as:

“…those who, because of the frequency or nature of their contacts with the [Council], hinder the [Council’s] consideration of their, or other people’s complaints.”

7. The Policy lists points to consider when assessing whether, on the facts of a case, proposed action is proportionate and necessary. The points include whether communications with the complainant have been “adequate, clear and coordinated”. If satisfied on these points, the Policy says consideration should be given to whether further action is necessary before deciding a complainant is ‘unreasonably persistent’. This may include considering if meeting with the complainant might help matters. The policy also says a complainant should receive a written warning the Council may treat them as unreasonably persistent (and why) if their actions continue. The Policy says the action taken should be appropriate and proportionate to the nature and frequency of the complainant’s contacts.
8. If the Council decides to apply the Policy, it will write to the complainant to tell them of the decision and explain how it will affect future contacts. The complainant is given a copy of the Policy and told what they can do to have the decision reviewed. The Policy says a review “should be carried out in accordance with agreed timescales or at least every six months…”

What happened

9. Like many people, for Mrs X the place where she lives is important to her. In writing to the Council, Mrs X referred to being passionately concerned and knowledgeable about her local environment.
10. Information provided by the Council showed Mrs X contacted it twice in 2017 about maintenance of a public area near her home (‘the Area’). The Council said it sent Mrs X a response about its routine maintenance programme. In 2018, Mrs X contacted the Council about third party works affecting the Area, which the Council investigated and then responded to. In 2019, Mrs X reported two further issues affecting the Area. The Council dealt with both issues and responded to Mrs X.
11. In summer 2019, Mrs X also wrote to the Council describing staff and works that had recently taken place in the Area in a negative way (contact 1). Mrs X recognised her words were “harsh” but said they reflected her “anger, dismay, upset and rage” at what she had seen. The Council replied expressing regret the works had distressed her. It said the Area was maintained for various users and works carried out with wildlife in mind to improve biodiversity. The Council described the works and the likely consequences of not maintaining the Area, providing photographs to support what it said. The Council also gave some information about the experience of the officer that had carried out the maintenance work.
12. Mrs X was not satisfied with the reply describing the Council’s explanation for the works as “absolute nonsense” (contact 2). Mrs X said the Council’s response was patronising and belittled her experience and knowledge. Mrs X also made further negative comments about the abilities of the person that had done the work and the aftermath of that work. Mrs X said the Council had not taken her report seriously but relied on what its officers said without visiting to see the damage caused to the Area. Mrs X also rejected the Council’s photographs as not relevant to the Area. About two weeks later (contact 3), Mrs X chased the Council for a reply, but it did not respond.
13. Mrs X then emailed (contact 4) the Council saying further, unnecessary, works had ‘left a trail of destruction’ in the Area. Mrs X also described the knowledge and attitude of Council officers in negative terms. There were further emails that same day with the Council acknowledging Mrs X’s report, which acknowledgement Mrs X said (contact 5) she found patronising. The Council then told Mrs X it had checked with onsite staff that said there had been no recent maintenance works. The Council said maintenance was in line with appropriate site management for flora and biodiversity. The Council also referred to heathland regeneration. Mrs X (contact 6) repeated there had been works and so someone was not telling the truth. Mrs X also questioned the reference to regeneration as the Area was not heathland.
14. About two weeks later, Mrs X emailed the Council and, over the following seven week, they exchanged further emails. The emails started with Mrs X saying (contact 7) the Council needed to take her maintenance concerns seriously and not just accept information from onsite staff. Mrs X repeated the Area was not properly maintained but “vandalised” and the Council had not justified the works it had carried out. Mrs X referred to the attitude of onsite staff in negative terms. The Council said it managed the Area in line with available resources and to its adopted standards. The Council recognised Mrs X might not agree with its maintenance approach or be happy with its works and signposted her to its complaints procedure if she wished to take the matter further. Mrs X then asked (contact 8) for a copy of the adopted maintenance standards, which the Council provided.
15. Mrs X then said (contact 9) further works had taken place that did not fully comply with the adopted standards and had again left the Area untidy and unkempt. Mrs X also raised a new matter linked to the Area. After a chaser email from Mrs X (contact 10), the Council responded to the new issue and referred to ‘conservation grasslands’ in commenting on further works. Mrs X questioned (contact 11) how ‘grasslands’ were relevant to the Area. The Council replied naming grassland areas. Mrs X emailed (contact 12) saying the named grasslands were miles from the Area and again asking how they were relevant to its maintenance. The Council said it had responded to Mrs X’s request to identify the areas. And previous maintenance of the Area had been to ensure it was open and welcoming for users. Mrs X said (contact 13) she was ‘even more perplexed’ about how the ‘grasslands’ were relevant to the Area. And the works, and their aftermath, were not ‘welcoming’ but destroyed the natural ecology of the Area by affecting wildlife habitat. Mrs X also said the, unnecessary, maintenance works were a waste of public money.
16. At this point, since Mrs X’s summer 2019 email (see paragraph 11), inclusive of chaser emails and clarification queries, Mrs X had contacted the Council on 13 occasions over 13 weeks. A senior officer in the service department dealing with Mrs X’s correspondence asked the Council’s complaint team to monitor her correspondence. The complaint’s team created a spreadsheet to record existing contacts from Mrs X and any in the future. The Council said the spreadsheet was to help assess the frequency and nature of Mrs X’s contacts. And it had intended to take this forward in Autumn 2019 but officers in the complaints team then moved to COVID-19 related work. The assessment was not therefore carried out until officers returned from COVID-19 related work. (The Council also recognised Mrs X’s correspondence reduced during 2020.)
17. Indeed, four months passed before Mrs X next contacted the Council in 2020 (contact 14). Mrs X referred to the 2019 correspondence about unnecessary maintenance of the Area and the damage it caused. Mrs X said she was complaining about recent work that left her “incandescent with rage”. Mrs X said onsite staff had “gone berserk with chain saws” felling healthy trees, removing wildlife habitats, and destroying emerging plants. Mrs X asked the Council to visit and not rely on comments from onsite officers, whom she described in negative terms.
18. After a further four months, Mrs X contacted the Council (contact 15). Mrs X noted the Council had not replied to her previous email, she also reported third party works affecting the Area. The Council acknowledged the contact and told Mrs X it would investigate.
19. About three months later, Mrs X contacted the Council (contact 16) to report non-native invasive plants growing in the Area. Mrs X said she had cleared some plants and reported the problem to onsite staff, but they had “done nothing” and a response was “time critical”. The Council said it would investigate and thanked Mrs X for acting as it had only one locally based officer.
20. Two weeks later, an officer that had been carrying out maintenance work in the Area emailed the Council describing contact earlier that day with Mrs X. The officer reported finding Mrs X’s behaviour quite aggressive.
21. A few days later (contact 17), Mrs X contacted the Council again describing herself as “incandescent” at the damage and destruction caused by maintenance works. Mrs X again said the works were not necessary, were a waste of public money, and carried out without any regard for the environment.
22. Three weeks later, an unnamed officer in the Council’s complaint’s team emailed Mrs X saying they were replying to her last contact (‘the Response’.) The Response referred to the Council’s maintenance contract for the Area and the works carried out each year. The Response said maintenance included appropriate biodiversity aims and the need to accommodate users, which had increased during the COVID-19 emergency. The Response also said the Council managed trees with safety in mind. Unfortunately, Ash Die Back would see many ash trees lost over the next five years but it would replace felled trees. The Response said Mrs X had contacted the Council “at least 18 times in the last year” about maintenance of the Area. The Council had provided “comprehensive responses” but understood Mrs X might disagree with what it had said and its management approach. The Response said the Council would not change its position and maintenance would continue in line with the information and explanations given to Mrs X. The Response said the Council had limited resources to deal with repeated comments about any matter. So, it would only acknowledge further enquiries about maintenance of the Area, but new issues raised would receive a detailed reply.
23. Over the following month, Mrs X sought to make a formal complaint about the Response finding it ‘untruthful, patronising and insulting’. Mrs X said she had written to the Council four times in the last year and not always about general maintenance of the Area. So, saying she had written “at least 18 times” was a complete and utter untruth. Mrs X said the statement was “obviously based on hearsay and a deliberately gross exaggeration to put [her] in a bad light.” Mrs X also complained the Response sought to ‘warn her off’ from making further comments as if she was a nuisance. Mrs X said she had a right to express concerns about management of the Area and officers should not seek to silence her.
24. Two months later, the Council responded to Mrs X’s complaint (‘the Complaint Response’). The Council apologised for its delay which it said was due to recent weather events and the COVID-19 emergency. The Council said it had considered Mrs X’s correspondence with its service department that had led up to her complaint. And it understood her complaint concerned the statement in the Response that:

“unfortunately, the Council has limited resources available to deal with repeated enquiries/comments of this nature and I must advise you that if you persist in contacting the County Council regarding this matter, it will be necessary for me to place restrictions on how your enquiries are dealt with in the future.”

The Council said this statement concerned the Policy which allowed it to restrict how persistent or unreasonable complainants could contact it.

25. The Council also referred to its complaints officer saying Mrs X had contacted the Council on “16 occasions within the last 7 months” (being June to December 2020). It said it could not see evidence to support that statement and then listed seven contacts from February to December 2020. The Council said Mrs X had also emailed:

“over 18 times over a 4 month period in 2019 and on occasions yearly from 2017, all of which are in relation to the maintenance of the [Area].”

The Council concluded the Response was “factually incorrect” as Mrs X had not made contact 16 times within the last 7 months. The Council apologised for the inaccuracy.

26. The Council confirmed the information it had provided about how it maintained the Area was factually correct and summarised that information. The Council also referred to that part of Mrs X’s complaint about the tone of the Response being ‘patronising and insulting’. The Council said it apologised Mrs X had interpreted the Response this way. It believed the Response was professional and informative and summarised matters concerning maintenance of the Area. The Council said the volume of Mrs X’s communications had highlighted it was necessary to review her contact and it would write separately about this soon.
27. A week later, the Council wrote to Mrs X (‘the Letter’). It said its investigation into Mrs X’s complaint about the Response had ‘highlighted the persistent volume of Mrs X’s contact’ about the Area. And ‘highlighted the necessity to review Mrs X’s contact’. The Council said the amount and type of communications it had received meant Mrs X was considered a persistent and unreasonable complainant under the Policy. The Council said Mrs X, having previously been made aware of its ability to restrict communications deemed persistent and unreasonable, had chosen to continue, which was deemed unacceptable under the Policy as:

• making excessive demand on staff (time and resources) while the complaint is investigated;
• submitting repeat complaints essentially about the same issue; and
• refusing to accept the decision reached on the complaint, repeatedly arguing the point and complaining about the decision.

28. The Council said it was therefore immediately restricting Mrs X’s contact and set out how she could communicate in future. The Council said it would not register further complaints or write further about maintenance of the Area. The Council said it would review the restriction after 12 months. And, if there were mitigating factors it was not aware of, or Mrs X’s circumstances significantly changed, she could ask for a review of the restriction.
29. Mrs X replied objecting to both the Council’s Complaint Response and the Letter. Mrs X said she had not previously replied to the Complaint Response and so could not have “repeatedly” argued against it. Mrs X said her complaint had been ‘perfectly reasonable’ when the Response contained a completely untrue statement about ‘18 contacts’. Mrs X said she had made 10 contacts in 2019. Many such contacts expressed concerns about maintenance of the Area, but others reported problems or sought clarification and so were not ‘complaints’. Only four contacts took place in 2020 and again included reporting problems. Mrs X said she was not therefore ‘a persistent complainant’ nor ‘unreasonable’. Mrs X accepted her criticisms may have been unwelcome but that did make expressing them unreasonable. Mrs X said the Council should not criticise her for raising concerns about damage from the maintenance works when its senior officer had made no effort to view the Area. Mrs X asked the Council to review its decision.
30. The Council replied saying it had investigated thoroughly and had nothing to add and would acknowledge and file any further contacts on the matter.

The Council’s comments to the Ombudsman

31. To reach its unreasonable/persistent decision, the Council said it:

• considered all Mrs X’s correspondence with the relevant service department from 2017;
• talked to and took account of comments by and responses from officers that dealt with Mrs X and her correspondence; and
• considered its complaints procedures and the Policy.

The Council said its spreadsheet showed “a high volume of persistent complaints about the same subject matter”. And the contact was having an adverse effect on the health and wellbeing of officers some of whom had spoken with Mrs X on site about maintenance works. It acknowledged some contacts reported issues, but Mrs X’s comments consistently took a negative and often derogatory tone that impacted officers’ health and wellbeing.

32. The Council said it therefore considered options for protecting its officers and restricting contacts in line with the Policy. It did not consider meeting with Mrs X to be appropriate (see paragraph 7). This was because Mrs X had already approached officers on site; she had a different opinion about how to carry out maintenance; and COVID-19 restrictions continued.
33. The Council said the Response gave the Policy ‘warning’ (see paragraph 7). When Mrs X then complained about the Response, and given the tone of her emails, it decided to tell her it would place her on its unreasonable and persistent register.
34. The Council said it decided to restrict Mrs X’s contact for 12 months as maintenance of the Area, which was Mrs X’s underlying concern, was seasonal. And Mrs X’s contacts largely took place when it carried out maintenance. However, the Letter gave Mrs X the right to request a review at any time if she provided new mitigating factors or her circumstances significantly changed. Mrs X could still report problems and disrepair affecting the Area as the restriction applied to further correspondence about how it maintained the Area.

Consideration

35. The Council is responsible for maintenance of the Area. Mrs X was entitled to ask the Council about how it fulfilled that responsibility. And the Council needed to provide clear, accurate and reasonably proportionate responses to explain how, and why, it carried out that responsibility in the way it did. I held no view on the matter and it was not part of my role to comment on how the Area might, could or should be maintained. It was also not for me to say whether Mrs X’s contact with the Council was or was not unreasonably persistent as set out in the Policy. That was a decision for the Council. My role was to consider whether there was evidence the Council had acted with fault in reaching its decision that Mrs X was a persistent and unreasonable complainant. My focus was therefore on how the Council had applied the Policy to Mrs X’s correspondence. To do this, and because of the differences between the parties about the amount of contact, I have carefully considered the copy correspondence provided by the Council.
36. The Policy refers to ‘complaints’. Mrs X was signposted to the Council’s complaints procedure in response to her contact 7 (see paragraph 14). Before that, Mrs X had twice raised maintenance of the Area (contacts 1 and 4). Her first contact had led to an exchange of correspondence where Mrs X made clear she had found the Council’s views and position on maintenance unacceptable (contact 2) and then a ‘chaser’ contact (contact 3). The Council may well have considered it had said all it reasonably could about maintenance of the Area in its reply to contact 1 and had nothing to add on receiving contacts 2 and 3. However, it did not tell Mrs X it had no further comments and, while recognising her differing views, could only offer that they ‘agree to disagree’. The correspondence was not therefore ‘closed’ at this point.
37. Contacts 4 to 6 took place over one day and did not end satisfactorily. The underlying difference between Mrs X and the Council at this point was whether there had recently been further maintenance works in the Area. Mrs X repeated a point first made in contact 2 about an officer visiting the Area to inform the Council’s view and response to her maintenance concerns. The exchanges on this day also introduced ‘heathland’ into the correspondence.
38. Contact 7 represented the third time in 2019 that Mrs X wrote about maintenance of the Area. Mrs X again suggested a visit so an officer could see her concerns. Besides signposting Mrs X to its complaint procedure, the Council’s reply referred to its adopted maintenance standards. It was reasonably foreseeable Mrs X would pursue matters, not by making a formal complaint, but asking to see the standards (contact 8).
39. This led to contact 9 (and a later chaser email (contact 10)) and Mrs X saying recent works did not comply with the standards. The Council’s reply introduced ‘conservation grasslands’. This led to Mrs X’s final 2019 contacts 11, 12 and 13 about relevance of grasslands to the Area.
40. I found contacts 1 to 13 included a lot more than just repeated reports/complaints about general maintenance of the Area. They included chaser emails and many that sought information and or clarification of points raised by the Council in its responses. As well as ‘how’ the Area was maintained, Mrs X also raised concerns about how the Area was left after maintenance. The Council may not have wanted to send an officer to view the Area, but it did not respond to Mrs X’s calls for a visit. It also did not, for example, tell Mrs X it would ask its contractor to provide photographs or consider any photographs she could provide to show the aftermath of works.
41. However, in addition to their number, the Council said it was also concerned about the tone of Mrs X’s contacts and their impact on officers. Mrs X recognised the words she used might be viewed as problematic in describing them as ‘harsh’ and ‘unwelcome’ (see paragraphs 11 and 29). The Council did not draw Mrs X’s words and phrases to her attention and tell her it found them unacceptable. It could have done so, indeed the Policy says it ‘does not expect its officers to tolerate abusive, offensive or threatening language’. If the Council had quickly addressed unacceptable language in Mrs X’s contacts and explained any consequences of continuing to use it, that would have given Mrs X clear information about its expectations for future contacts.
42. I recognised what the Council said about the volume and impact of Mrs X’s 2019 correspondence. However, I did not find the correspondence mainly concerned repeat contacts about general maintenance of the Area that the Council had already clearly, accurately and proportionately addressed.
43. The Council also did not act on the 2019 contacts promptly. The Council referred to the impact of COVID-19. However, such restrictions arose more than five months after Mrs X’s final 2019 contact. And more than 13 months passed before the Council took substantive action and sent the Response to Mrs X. In those 13 months, Mrs X had written four times to the Council. Mrs X first wrote about general maintenance of the Area in early 2020 (contact 14), again asking for a visit. Mrs X later sent contacts 15 and 16, which read as reports of issues affecting the Area rather than about its general maintenance. It was contact 17, about recent maintenance works, that ‘triggered’ the Response.
44. I recognised that, for the Council, it sent the Response after considering both its spreadsheet of contacts from Mrs X and the impact on officers of that contact. I also recognised that, for Mrs X, the Response came to contact 17, which itself was but one of four contacts since late 2019. The Response also, as Mrs X later pointed out, was inaccurate in describing her contacts. Mrs X did not contact the Council ‘18 times in the 12 months’ before the Response. The Complaint Response then introduced contacts ‘from June to December 2020’ and also contacts made on ‘16 occasions within the seven months February to December 2020’. It also said Mrs X emailed ‘over 18 times over a 4 month period in 2019’. None of these descriptions of contact from Mrs X were correct.
45. I was also concerned the Council took account of Mrs X’s December 2020 contacts in reaching its persistent and unreasonable complainant decision. The December 2020 correspondence represented Mrs X’s attempts to access its complaints procedure. The December 2020 correspondence included information and comments about maintenance of the Area but the purpose and aim of those emails was to make a formal complaint. Indeed, the Council had, in seeking to conclude the 2019 correspondence, suggested she pursue her concerns through its complaint procedure. Mrs X’s December 2020 correspondence was understandable and justified given the underlying error in the Response about her contacts. And, overall, I found the Council attributed significantly more contacts from Mrs X about general maintenance of the Area than took place.
46. The Policy says the complainant must receive a written warning, “that if his/her actions continue, the Council may decide to treat him/her as an unreasonably persistent complainant and why”. The Council said it gave that warning in the Response. The copy of the Response the Council provided tells Mrs X ‘further enquiries/comments will only be acknowledged’. Saying you will not respond to their further correspondence is different to warning someone you may decide they are unreasonably persistent if they continue to communicate. I found the Council did not give Mrs X the written warning needed by the Policy. (In responding to the draft of this statement, the Council apologised for inaccurate references about the Response (see paragraphs 24 and 25). The Council said it had made a genuine error in referring to a draft letter it had not sent.)
47. Mrs X wanted a right of appeal against the Council’s unreasonably persistent decision. The Policy says, writing to tell a complainant about an unreasonably persistent decision, the Council should explain what they can do to have the decision reviewed. The Letter told Mrs X if there new mitigating factors or her circumstances significantly changed, she could ask it to review its decision. I found the Council properly applied this part of the Policy.

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Agreed action

48. The Policy aims to “…deal fairly and honestly with the complainant ….” while ensuring others do not suffer because of repeated, persistent and unreasonable complaints. I found flaws in the Council’s assessment of the number of contacts made by Mrs X. I also found the Council gave insufficient consideration to actions, short of applying the Policy, to effectively deal with Mrs X’s correspondence. The Council also failed to give Mrs X the necessary written warning in line with the Policy. I therefore found fault in how the Council reached its unreasonably persistent decision. The Council’s decision caused Mrs X distress. The Council agreed, within 20 working days of this statement, to:

• apologise to Mrs X for not correctly applying the Policy to reach its unreasonably persistent decision; and
• immediately review its decision.

(The Council should copy its apology letter to the Ombudsman and let him know the outcome of the review.)

49. The Council also agreed to consider offering a site meeting to Mrs X after carrying out seasonal maintenance works. An independent mediator would likely attend the meeting to help, among other matters, ensure any discussion concerns issues and not people. A visit would allow Mrs X to point to any specific matters of concern about how the Area was left following works. Both sides would then have a shared basis on which to reach a view of post work onsite conditions, although not necessarily agreeing on whether they were acceptable. Mrs X has a right to raise questions about how the Council maintains the Area (see paragraph 35), which the Council should respond to suitably. But once ‘asked and suitably answered’, the Council may take reasonable steps to end further correspondence on the matter concerned.

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Final decision

50. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 48 and 49.

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Investigator's decision on behalf of the Ombudsman