Summary: There was fault by the Council as it failed to ensure that a leisure centre, managed on its behalf, had a customer complaints procedure. The lack of a definite process that should be followed has meant that Mr X feels uncertain whether all the facts were considered before he was banned from the leisure centre. Ensuring the leisure centre puts in place a complaints procedure and apologising to Mr X remedies his injustice. It is not possible to find out now whether a complaints process would have changed the outcome.

The complaint

1. The complainant, who I shall call Mr X, complains about the Council’s decision to ban him from a leisure centre for 12 months. Mr X complains the Council did not adequately consider the similarity in staff statements and unclear dates when deciding to ban him.
2. Mr X also says the Council has not put in place a customer complaint policy.
3. Mr X says the Council’s decision has meant he could not use the leisure centre and does not feel comfortable returning, now the restriction has ended.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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)

5. If we are satisfied with an organisation’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

6. I read the papers put in by Mr X and discussed the complaint with him.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

9. Mr X was a member of a Council leisure centre managed by a company. Mr X has a disability, so needed support and reasonable adjustments to use the gym.
10. On 31 August 2021 leisure centre staff met with Mr X to formally raise concerns about his behaviour to certain members of staff. A warning was issued to Mr X about his future conduct if he wished to continue to use the leisure centre.
11. At a further meeting on 17 November 2021 the leisure centre gave Mr X an indefinite ban on using the leisure centre because of increasing concerns about his behaviour.
12. The leisure centres membership terms and conditions said that they had the right to end membership without notice for a breach of centre guidelines or problems with the members conduct.
13. Mr X appealed against the decision. The leisure centres regional manager lessened the sanction to a 12 month ban.
14. Mr X could return to the centre on 18 November 2022.

What should have happened

15. The leisure centre should have had a customer complaints policy. It did not. The Council partially upheld Mr X’s stage 2 complaint as it said ‘the leisure centre used appropriate terms and conditions to cancel Mr X’s membership, but it does not have a recognised process for dealing with complaints against customers and so his complaint is partially upheld’.
16. The letter the Council wrote to the leisure centre after its investigation said ‘during the investigation the leisure centre confirmed it was in the process of adopting a customer complaint policy and appeals process’.
17. Leisure centres managed on behalf of the Council can restrict access to facilities, courses, services or buildings, as long as this is done with good reason and officers have followed the proper process and applied the correct policies. Councils have a duty to their staff to protect them from unacceptable behaviour, as well as protecting other users and its facilities.
18. There was no customer complaint procedure. Without this I consider the leisure centre should have:
• collected evidence from all parties to an incident, including the complainant, as well as any witnesses;
• written to the complainant to set out the terms of the ban and explained its reasons for imposing it;
• given the complainant an opportunity to appeal against the ban;
• told the complainant when it will review their ban;
• told the complainant of any change to the terms of the ban in a timely way (the terms may be changed if, for example, the complainant has behaved in a way contrary to the initial ban);
• continued to gather any relevant information about the complainant’s actions during the ban period (this can be used to inform and support officers’ decision once they come to review the ban).

Leisure Centre Ban

19. Mr X has explained in detail why he considers the leisure centre ban was unfair. My role is to look at the way the leisure centre took the decision.
20. Mr X says the Council did not adequately consider the similarity in staff statements and unclear dates, when deciding to ban him from the centre.
21. The Council wrote to the leisure centres management after the stage 2 complaint. The investigation identified that:
• There was ambiguity about whether some statements read out at the meeting on 17 November referred to incidents occurring before 31 August. However 2 statements did catalogue the incidents which triggered the meeting and informed the decision to end Mr X's membership on 17 November.
• Mr X did receive all copies of statements made and used in deciding to end his membership and later amendment to a 12-month ban.
• The leisure centre used appropriate terms and conditions to cancel Mr X's membership.
• The leisure centre does not have a recognised process for dealing with complaints against customers.
• Due to the significant weight the leisure centre placed on the feelings of the employee, particularly that they felt harassed by Mr X's actions, the temporary suspension seems appropriate and therefore the process would not change the outcome.
22. I have seen the notes of the hearing of 17 November which Mr X attended, with his wife and leisure centre staff. Notes of the meeting say:
• statements from members of staff were read out.
• Mr X said '85% of the statements read out were made up, that he’d told people things to see who would pass it on. Said there were too many discrepancies in the statements and that he knows exactly who had made them’.
• Mr X’s view was that he been a member since 2017 and not had any problems until a letter went out saying about his disability requirements.
• Mr X said a staff member had offered him a job verbally.
• Staff asked Mr X ‘as a few staff are all saying this are you saying there is a conspiracy?’
• Five members of staff and one customer had complained about Mr X.
• The leisure centre staff explained that they would be banning Mr X from the gym as they had a duty of care to staff.
23. Mr X appealed against the ban and the leisure centre reduced it to a 12 month ban. Mr X also made an official complaint through the Council’s complaints procedure.
24. The Council identified three steps that in hindsight could have improved the situation with Mr X and should be considered for adoption in the future:
• Writing a letter to Mr X to summarise the agreed outcomes of the meeting on 31 August and to state what would happen if he did not follow the agreement.
• Writing to Mr X before the meeting of 17 November to confirm the reason for the meeting, share statements in advance and set out what the consequences from the meeting would be.
• To include in the outcome letter dated 18 November what rights Mr X has to appeal and how he can do this if necessary. The outcome letter should have included a summary of the key points which led to the decision’.

Conclusion

25. The ban from the leisure centre caused significant injustice to Mr X. His disability means that using a different gym is difficult for him, as the reasonable adjustments and familiarity of the setting are essential for him to access a gym.
26. However, it is also clear the member of staff involved felt his behaviour towards her was unacceptable. So, under the leisure centres terms and conditions of membership, it could ban Mr X from the gym.
27. There was no clear process in place for this situation, which was fault. So, Mr X cannot know if the outcome would have been different if the steps already identified by the Council had been in place in a proper complaints procedure. Given the fault in the process there is uncertainty about the decision to ban him, i.e. if the same decision would have been reached if the faults had not occurred.
28. The only way to find out if the leisure centre would reach the same decision, if the fault had not occurred, would be to repeat the process. But, given the ban has been lifted and Mr X is free to return to the gym, I cannot see any benefit in putting everyone through the stress of the process again.
29. However, I do consider the Council should ensure the leisure centre puts in place a complaints process for the future. This would set out clearly the way a hearing should be considered, especially when a ban has a significant impact on a member with a disability who may not be able to access gym facilities elsewhere. It should also alleviate concerns Mr X has about how he will be treated when he returns to the leisure centre. As, if there is a set process in place, he will be aware of what will happen if there are any further allegations made against him.

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Agreed action

30. The Council should ensure the leisure centre has a policy for how customer complaints (both general complaints and complaints that a customers behaviour might be inappropriate or unacceptable) within two months of the date of the decision on this complaint.
31. The Council should apologise in writing to Mr X for the uncertainty caused by failing to have a procedure in place within one month of the date of the decision on this complaint.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation of this complaint. This complaint is upheld. I consider the injustice caused to Mr X is remedied by an apology and ensuring a procedure is put in place for complaints at the leisure centre.

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Investigator's decision on behalf of the Ombudsman