Summary: Mr X complained about the way the Council dealt with his concerns about harassment and that it wrongly excluded him from membership of its fitness and wellbeing centres. The Council’s failure to properly advise Mr X regarding the special measures imposed under the Managed Contact policy and when and how they would be reviewed amounts to fault. As does the delay in reviewing the measures imposed on Mr X. These faults have caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complained about the way the Council dealt with his concerns about harassment and that it wrongly excluded him from membership of its fitness and wellbeing centres.
2. Mr X also complained the Council refused to correspond with his solicitor and failed to deal with his complaint in accordance with its complaints procedure.

Back to top

What I have investigated

3. Although Mr X has complained about the way the Council has dealt with this matter since 2018, my investigation only focuses on events since 2020.

Back to top

The Ombudsman’s role and powers

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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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 has done. (Local Government Act 1974, sections 26B and 34D, 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)

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background

9. The Council’s leisure centres and swimming pools are operated by Brio Leisure, a Community Interest Company, which is wholly owned by the Council. Mr X had been a member of the leisure centres for several years. Since 2018 Mr X has complained to Brio Leisure about the actions of other members, including queue jumping, swearing and reserving spaces in classes. Brio leisure has also received counter complaints about Mr X from these other members.
10. In response to these complaints, Brio Leisure has attempted to witness the issues, reviewed CCTV footage and discussed the incidents with the police. Brio Leisure considered there were personal issues between the parties and asked them not to bring these problems into the leisure centres. In December 2018 it wrote to Mr X and the other members and suggested that where possible the parties should try to avoid each other. It asked that all parties ensured they checked in prior to any session starting, ensured queues were observed and that they wait in line with everyone else. It also asked that they did not reserve or hold spaces in any class for people who had not yet arrived.
11. Mr X was unhappy with Brio Leisure’s response and questioned why it had not excluded the other parties given their unacceptable behaviour. Mr X and the other members continued to complain about each other’s conduct.
12. I have referred to events in 2018 and 2019 to provide context, but do they not form part of the investigation.

Key facts

13. In December 2019 Mr X’s solicitors wrote to Brio Leisure in relation to the ongoing verbal and physical abuse Mr X was experiencing from a group of other members. The solicitors asked for a practical solution to be found to allow Mr X to attend the site when he wished without the risk of harassment. It also asserted that Brio Leisure’s handling of the matter amounted to discrimination on the grounds of sex to the detriment of Mr X.
14. Brio Leisure responded in February 2020 and stated it had dealt with each of Mr X’s complaints carefully, promptly, and fairly, and it had clearly communicated its findings to Mr X on each occasion. It refuted Mr X’s claim of discrimination on the grounds of sex. Brio Leisure suggested the best course of action would be for Mr X to seek to resolve any ongoing issues with the other parties through mediation or other means of dispute resolution.
15. Mr X contacted Brio Leisure again in March 2020 to report one of the members reserving a space in a class. As this was in breach of the rules Brio Leisure had previously set out he questioned whether the rules were still in place. Brio Leisure noted it was over a year since it had written to the parties regarding use of the facilities and agreed to send the other member a reminder.
16. Mr X was unhappy with this approach and asserted Brio Leisure were taking a lenient approach because the other customer was a woman. And that the position would have been different if he or another male customer had disregarded Brio Leisure’s instructions. Mr X stated he would escalate the matter to the Managing Director.
17. Later that month the leisure centres closed for the duration of the COVID-19 national lockdowns.
18. In May 2020 Mr X’s solicitors wrote to Brio Leisure again advising Mr X was still experiencing difficulties at the centres. While Mr X was following the guidance Brio Leisure had issued, the other customers were not and consequently Mr X was suffering. They asked for a discussion with Brio Leisure to try and resolve the issues.
19. The Council responded on behalf of Brio Leisure and noted that the position had not changed since Brio Leisure’s letter of February 2020. It noted the solicitor’s letter did not raise any new issues and considered there was nothing to be gained from holding a discussion.
20. Mr X’s solicitors contacted the Council again in September, November and December 2020 asking to discuss the matter. On each occasion the Council advised that unless there were new allegations, supported by evidence, it considered the matter closed. It noted the last complaint from Mr X was in March 2020 and had been dealt with.
21. In March 2021 Mr X contacted Brio Leisure again asking an Executive Director to consider his complaints. The Council responded on 31 March 2021. It stated Brio Leisure had investigated Mr X’s complaints and attempted to put in place proportionate measures to respond to his perceived issues. The Council considered it was clear Mr X was either unable or unwilling to accept the outcome of Brio Leisure’s complaints process and would continue to raise the same issues over and over again.
22. The Council considered Mr X’s inability to accept the complaint outcomes, persistent requests to revisit complaints and the threat of legal proceedings together amounted to behaviour that was unacceptable to Brio Leisure. Consequently Brio Leisure considered its relationship with Mr X was no longer sustainable and had decided to terminate his membership agreement with immediate effect.
23. The Council confirmed that as Mr X was no longer a member of Brio Leisure he could not attend any Brio sites without obtaining the express permission of the centre management.
24. Mr X was unhappy with the Council’s action and made a formal complaint in May 2021. He complained that he was being harassed at the Brio sites and although rules were put in place to protect him, Brio Leisure refused to enforce them. Mr X stated he was forced to seek legal help, but Brio Leisure refused to correspond with his solicitor and instead excluded him from its sites. Mr X complained the exclusion meant he could not take his son to learn to swim or to the Christmas pantomime, he could not attend events with other family members, or exercise for his own wellbeing. He considered Brio Leisure had breached his human rights.
25. In its response the Council asserted Brio Leisure had acted reasonably in responding to his various complaints. Staff had investigated his claims and spoken to other members of staff and Brio members to try to substantiate allegations. Where possible they had viewed CCTV footage to corroborate events and had met with Mr X to discuss his complaints in more detail.
26. The terms and conditions of membership state Brio Leisure “reserve the right to ask members to leave the scheme if they abuse their membership, such as non-payment or unacceptable behaviour.” Brio Leisure took the view that Mr X’s refusal to accept the outcome of the complaints and his repeated threats of legal action amounted to unacceptable behaviour.
27. The Council noted however that the termination of Mr X’s membership did not prohibit him from visiting the Brio sites to undertake the activities he had listed, provided he requested permission of the site manager in advance.
28. As Mr X was not satisfied by the Council’s response, he asked for complaint to be considered further. The Council advised Mr X it was satisfied the stage 1 response was robust and dealt with his concerns appropriately. It did not consider there was any merit in re-investigating the complaint at stage 1 or in accepting a stage 2 complaint as it was unlikely the Council’s position would change.
29. Mr X remains unhappy with Brio Leisure and the Council’s actions and has asked the Ombudsman to investigate his complaint. In response to my enquiries the Council states Mr X has not contacted Brio Leisure regarding accessing it sites, for example to attend his niece’s graduation. It states access to its sites is a separate matter to the termination of his membership and is not prohibited.
30. The Council also notes that Mr X has not requested a review of his membership termination. In November 2021 Brio Leisure updated its managed contact policy to include a review process. It states it will review its position regarding the termination of Mr X’s membership in March 2022.
31. In relation to its complaints process, the Council states it will review each request to escalate to stage 2 to ensure the complaints process is still the most appropriate route to address the concerns raised. In Mr X’s case the Council was satisfied further investigation would not change the Council’s position and it was most appropriate to refer his complaint directly to the Ombudsman.

Analysis

32. Mr X is unhappy with Brio leisure’s response to his complaint about the actions of another customer in March 2020 and believes tougher sanctions should have been imposed. It is not the Ombudsman’s role to decide what action should be taken to resolve complaints about or between customers; that is a matter for Brio Leisure. Brio Leisure considered Mr X’s concern about a place being reserved in a class and determined it was appropriate to issue a reminder that this was not permitted. This is a decision Brio Leisure was entitled to make and does not amount to fault. There is no evidence that this decision was based on, or influenced by, the fact Mr X is male and the other customer female.
33. I recognise that the national lockdowns then limited Mr X and other customers’ ability to access the leisure centres for periods in 2020. But there is no evidence Mr X has reported further incidents since March 2020. Mr X and his solicitors have however sought to pursue his complaints about earlier events which Brio Leisure consider closed.
34. Brio Leisure’s Managed Contact Policy sets out what it considers to be unreasonably persistent conduct. This includes failing to accept Brio’s position, either as a service level agreement, a policy, a decision and a request for service or a complaint outcome. The decision to implement special measures under its Managed Contact policy is one Brio Leisure is entitled to take and does not amount to fault. However, having made this decision, we would expect Brio Leisure to act in accordance with this policy.
35. The Managed Contact Policy has a two stage process, but states that if a customer’s conduct is considered extreme, Brio Leisure can move straight to its final stage. The policy states that in all cases it will write to tell a customer why it believes their behaviour is unacceptable, what action it is taking and the duration of that action.
36. There is no right of appeal at any stage of the policy, but Brio Leisure will advise the customer of the outcome of a review of their conduct after the monitoring period expires or following scheduled reviews. In addition, the policy states that reviews of managed contact arrangements will take place quarterly subject to other demands on the service and no later than every six months from the date of the decision.
37. Brio Leisure amended its Managed Contact policy in November 2021 to include the following in the list of possible special measures it could take:

“Temporary or specific suspensions of memberships and access to a Brio site, example, 3 months, 6 months and 12 months. A maximum suspension term is 12 months.”

38. A further amendment states:

“All suspended accounts/ membership will be reviewed at the end of their suspension term and only on the written request from the customer. Brio will not reinstate an account/ membership without this formal request, if no formal request is made, the case will be archived.”

39. These provisions would not apply retrospectively to Mr X’s case but add clarity to the process for suspending membership and reviews.
40. The Council wrote to Mr X in March 2021 on behalf of Brio Leisure terminating his membership and requiring him to obtain permission in advance to visit Brio sites. This letter explains why Brio Leisure considers Mr X’s conduct is unacceptable and refers to the terms and conditions of Mr X’s membership. But it does not refer to the Managed Contact Policy or state how this process is being applied. Nor does it state when and if Mr X’s membership and the restrictions on his access to Brio sites will be reviewed.
41. I consider the failure to properly advise Mr X regarding the special measures imposed under the Managed Contact policy and when and how they will be reviewed amounts to fault. I note Brio Leisure reviewed Mr X’s membership and the restrictions on his access to site in March 2022. Based on the policy in place at the time, Brio Leisure should have reviewed Mr X’s membership and the condition on his imposed on his access to Brio sites by September 2021 at the latest. The delay in carrying out this review amounts to fault.
42. Having identified fault, I must consider whether this has caused Mr X a significant injustice. Mr X states Brio Leisure’s actions meant he has been unable to take his young son for swimming lessons or to the pantomime and has been unable to attend his niece’s graduation or sporting events at the sites. This is not however the case. Brio Leisure did not prohibit Mr X from attending its sites and Mr X could have carried out all these activities by giving prior notice of his wish to attend. Mr X has not contacted Brio Leisure regarding using its facilities.
43. I do however consider Mr X has experienced uncertainty and been put to unnecessary time and trouble by the lack of clarity and delay in reviewing the measures imposed on him under the Managed Contact policy.

Back to top

Agreed action

44. The Council has agreed to apologise to Mr X for the failure to properly advise him regarding the special measures imposed under the Managed Contact policy and for the delay in reviewing these measures.
45. The Council should take this action within one month of the final decision on this complaint.

Back to top

Final decision

46. The Council’s failure to properly advise Mr X regarding the special measures imposed under the Managed Contact policy and when and how they will be reviewed amounts to fault. As does the delay in reviewing the measures imposed on Mr X. These faults have caused Mr X an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman