Summary: Mrs F complains about historical allegations of bullying, harassment and discrimination by members of her local allotment association. She says the Council is ultimately responsible for the management of allotments, as well as the way complaints are considered. I consider most of Mrs F’s complaint is out of time as the issues she raises predate to 2005. In other areas, Mrs F could reasonably take her case to court. We do not consider it is a good use of our resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issues. We are therefore discontinuing our investigation.

The complaint

1. The complainant, who I refer to as Mrs F, is making a complaint about the procedural handling of a case review into historical allegations of bullying, harassment and discrimination. The case review was conducted by ABC on behalf Newcastle-upon-Tyne City Council (the Council).
2. In brief, ABC is an independent charity which, as of April 2019, became responsible for the management of 33 parks and 61 allotment sites across Newcastle. ABC was provided a long lease for these sites by the Council. Mrs F has subsequently made a complaint against the Council about ABC’s handling of a case review since the Council is ultimately responsible for the actions of ABC.
3. Mrs F says the issues complained of have caused her fear and severe distress over 15 years. As a desired outcome, Mrs F wants the Council to acknowledge the harm done to her and provide an independent review of the complaint. Further, she wants the Council to adopt new policies and processes relating to complaint handling.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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/care provider 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. I have read Mrs F’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, its documents and applicable legislation. I invited both Mrs F and the Council to comment on a draft of my decision. Each of their comments were considered before a final decision was made.

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What I found

Background and legislative framework

9. Harassment is both a criminal offence and a civil action under the Protection from Harassment Act 1997. This means that someone can be prosecuted in the criminal courts if they harass you. It also means you can take action against the person in the civil courts.

Chronology of events

10. By way of background, Mrs F has consistently complained of bullying, harassment and disability discrimination by committee members of her local allotment association (the Association) since 2005. At the time, ABC was not in existence and the Council had contracted the management of its allotments and parks to the Association. Therefore, Mrs F’s complaints of bullying and discrimination were made to and dealt with by the Association.
11. In April 2015, Mrs F raised allegations of bullying and discrimination which subsequently led to an inquiry by the Ombudsman. The inquiry identified that the Council has a role in ensuring the Association largely maintain and adhere to the expected standards. The Ombudsman found the Association, acting for the Council, did not conduct an even handed process into the issues raised by Mrs F.
12. In April 2019, ABC was incorporated as a charity and contracted by the Council for the management and upkeep of its allotments and parks. Four days after its creation, Mrs F wrote to ABC to complain about the bullying and discriminatory behaviour on the part of committee members of the Association over a number of years. The issues presented by Mrs F mirrored past allegations which had earlier been considered by the Council and Association at different occasions.
13. Between April 2019 and August 2020, Mrs F submitted further complaints to ABC relating to breaches of the Equality Act 2010 by members of the Association’s committee. Specifically, the allegations centred on incidents at meetings in 2019 and 2018 and earlier. Importantly, I have not seen any evidence of Mrs F pointing to specific acts of bullying or discrimination since ABC was contracted.
14. In June 2020, Mrs F made a further complaint to ABC about specific acts of harassment by an Association member. She later referred this to the police.
15. In August 2020, ABC agreed to conduct a full case review into the issues raised by Mrs F. It is this case review conducted by ABC which is subject to Mrs F’s complaint to the Ombudsman. Importantly, the case review by ABC was to only review complaints Mrs F has made to ABC between April 2019 and August 2020. I have commented earlier that the complaints made by Mrs F falling within this time period relate to allegations much earlier and over the course of 14 years.
16. In March 2021, ABC completed its case review and provided this to Mrs F. It found no clear evidence of bullying, harassment and victimisation. It also found that the Association had correctly followed the available advice and guidance on investigating complaints and resolving grievances. The outcome also concluded that the recommendations and decisions set out in this case review were final and non-negotiable. Mrs F thought this unreasonable as, from her perspective, she had not been asked to contribute to the process in any way.

My assessment

Third party actions

17. The law says we can treat the actions of third parties as if they were actions of the Council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8)). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party. The Council therefore has a role in ensuring that ABC, and therefore the Association, maintain and adhere to the expected standards.
18. As I understand, Mrs F’s complaint to the Ombudsman has two particular aspects which need to be considered. These can be summarised as follows:
1. The manner in which her allegations of bullying and discrimination have been dealt with by ABC, the Association and ultimately the Council over time.
2. The manner in which ABC, acting on behalf of the Council, procedurally conducted a formal case review into the allegations raised by Mrs F.

Time limitations

19. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. In relation to Mrs F’s complaints of bullying and discrimination, these are historical in nature and date as far back as 2005.
20. I fully accept that different organisations have acted on behalf of the Council over time and that it was only in April 2019 that Mrs F was able to complain to ABC. I also note ABC only completed its case review into the allegations in March 2021.
21. That said, Mrs F’s complaint is that the Council, being responsible for ensuring the standards of ABC and the Association, has failed in its response to addressing the allegations raised. I consider the evidence shows Mrs F’s concerns have however already been considered by the Council and Association prior to April 2019. I am not convinced that Mrs F’s complaints to ABC make any new and material points relating to bullying and discrimination.
22. On the face of it, this particular aspect of the complaint is late. In reaching a decision about whether to exercise discretion and investigate the allegations, I have considered whether there were good reasons why Mrs F did not complain to the Ombudsman sooner. I have also had regard to whether, in light of the time which has lapsed since these issues began, there is a realistic prospect of reaching a sound, fair, and meaningful decision.
23. The evidence demonstrates that Mrs F has been highly active in pursuing the Council’s responsiveness to these allegations over many years. I also note Mrs F complained to the Ombudsman in 2015 about the way the Council responded to the allegations. It is clear that Mrs F considers the alleged conduct has continued beyond when the Ombudsman last considered her complaint. However, Mrs F has not raised a further complaint until now. Instead, I consider that the evidence shows Mrs F has instead opted to exclusively raise the historical issues with the Council and its contracted third parties. I believe it would have been reasonable for Mrs F to raise any further issues to the Ombudsman sooner.
24. As said, Mrs F’s perception that the Council has failed to adequately address and remedy the allegations of bullying and discrimination are long standing. I have reviewed some of the historical evidence in this case and Mrs F’s specific allegations as to how the complaints process has been flawed. In my view, in order to investigate the Council’s responsiveness to the substantive allegations, I would inevitably need to conduct an investigation into the underlying issues which have occurred since 2005. I consider the following:
1. There would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement.
2. We cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in Mrs F’s case.
3. It is likely to be more difficult to achieve a meaningful remedy in Mrs F’s case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
25. For these reasons, I do not consider that there is a realistic prospect of reaching a sound, fair, and meaningful decision relating to the Council’s responsiveness to Mrs F’s historical allegations. I consider paragraph five applies and we have no legal jurisdiction to investigate these matters.
26. Importantly, I fully recognise that there is a more recent aspect of Mrs F’s complaint. In April 2019, ABC took on responsibly for the management of the Council’s allotments and parks. Four days after ABC’s incorporation as a registered charity, Mrs F subsequently raised the historical allegations to ABC and it agreed to undertake a case review.
27. I have read the complaint correspondence sent by Mrs F to ABC between April 2019 and August 2020. In my view, the issues raised by Mrs F relate to events involving the Council and Association before April 2019. As said, I do not propose to investigate the substantive allegations which predate this point in time since we have no legal jurisdiction in this respect. In any event, the case review undertaken by ABC is inextricably linked to the allegations of bullying and discrimination by Mrs F which has been a source of dispute for many years. Specifically, I note Mrs F’s complaint to ABC expressly makes reference to historical allegations and raises documentary evidence over the years. Mrs F also raises how the case review was flawed by reason of bias due to the historical events in the case which even predate ABC’s existence as a charity.
28. In summary, I do not consider it is possible to investigate the adequacy of the case review conducted by ABC without investigating the historical allegations for which we have no jurisdiction to investigate. Mrs F’s complaint to ABC in April 2019 which led to the case review relates to matters before its incorporation. These matters have already been considered by the Council and it would have been reasonable for Mrs F to have complained to us sooner. In my view, large parts of Mrs F’s complaints to ABC has been to repeat past issues which have already received careful deliberation.
29. In addition, our guidance states that it is not a good use of our resources to investigate complaints about the complaints process in circumstances where we cannot deal with the overriding substantive issue. The overriding substantive issue in this case is the historical allegations by Mrs F and the Council’s handling of them. We cannot deal with these matters due to them being out of time and I am not satisfied we should exercise discretion and investigate. I do not therefore believe it is a good use of our resources to investigate the complaints process engaged by ABC on behalf of the Council.

Allegations of harassment

30. Importantly, Mrs F made complaints to ABC in June 2020 with respect to a member of her Association. The complaint specified allegations of harassment during the operation times of the case review being undertaken. This particular complaint is in time because the incidents which Mrs F refers to took place across June 2020 and it was reasonable for Mrs F to wait for the conclusion of the case review by ABC to address these issues. That said, a person can take civil action against a person they believe to be harassing them (see paragraph six).
31. By law, I cannot investigate a complaint if the complainant could reasonably take their case to court. Adjudication on questions of harassment usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court and the police can decide if someone has been harassed and what actions should be taken to remedy the matter. For these reasons, it is my view that it would be reasonable for Mrs F to pursue this complaint through the courts and we therefore have no jurisdiction to investigate.
32. In addition, harassment is a criminal offence and if Mrs F feels a course of conduct by others is causing her distress or alarm, then the police are the most appropriate body to investigate. Further, only the police and courts have the power to issue and enforce an order for harassment. We therefore cannot achieve a remedy for Mrs F in respect of allegations of harassment.
33. In summary, we do not have jurisdiction to investigate the substantive allegation of harassment which Mrs F brought to the attention of ABC in June 2020. As with the matters Mrs F has raised which I consider are out of time, this issue is inextricably linked to the case review, meaning I cannot assess the case review’s handing of the allegation without assessing the out of jurisdiction issue also. I have already commented that we do not consider it is a good use of resources to investigate complaints about the complaints process (e.g. the case review) where we cannot look at the overriding substantive issue.

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Final decision

34. I am discontinuing my investigation. This is because most of Mrs F’s complaint is late and there is no good reason to exercise discretion. This means we have no legal jurisdiction to investigate the substantive matters raises by Mrs F. Moreover, I cannot by law investigate overriding substantive issues involving allegations of harassment since Mrs F could reasonably take her case to court. I do not consider it is a good use of our resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.

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Investigator's decision on behalf of the Ombudsman