Summary: Mr X complains about the way the Council and its contractor dealt with an incident at a community building and later decided to ban him from the building. We have found no evidence of fault in the way the decision to ban Mr X from the building was made. But we found fault as the Council and contractor failed to advise of and provide a formal right of review of the decision and to fully consider the requirements of the ban causing distress and uncertainty to Mr X. We have recommended a suitable remedy in this case, so we have completed our investigation.

The complaint

1. I have called the complainant Mr X. He complains about the way the Council and its contractor, Company B dealt with an incident at a community building leading staff to ban Mr X from the building. Mr X considers the ban unfair and unjustified causing him distress and uncertainty.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. But if we do find fault, 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. 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 considered the complaint and documents provided by Mr X and discussed the complaint with him. I asked the Council to comment on the complaint and provide information.
7. Mr X and the Council 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

8. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including:

• the right to life,
• freedom from torture and inhuman or degrading treatment or punishment,
• liberty and security of person,
• a fair hearing,
• respect for private and family life,
• freedom of expression,
• freedom of religion,
• freedom from forced labour, and education.

9. The Act requires all local authorities - and other bodies carrying out public functions to respect and protect individuals’ rights.
10. Not all rights operate in the same way. Instead, they break down into three separate categories:

• Absolute rights: those which cannot be taken away under any circumstances.
• Limited rights: those that can be taken away in certain circumstances; and
• Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

11. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
12. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:

• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened in this case

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Company B runs a community building for the Council under a ‘Total Management’ contract. This means Company B has direct control to manage and run the building.
15. Mr X says he used to visit the community building and talk to staff there. Staff at Company B accused him of being inappropriate. Mr X spoke with a duty manager, refuted the allegation, and felt this amicably resolved the matter. Mr X complained to a senior manager at Company B about the issue. Company B told the Council about the matter.
16. A senior manager at Company B wrote to Mr X after considering staff statements, Mr X’s conversations with the duty manager, and Mr X’s recent communications. The senior manager told Mr X he was not welcome in buildings managed by Company B. The manager explained it made the decision to protect the way staff felt when Mr X was in or near the building or on occasions when he had been seen outside their homes. The senior manager respectfully asked Mr X not to come in the sightlines of the building and for him to be wary of purposefully standing outside the homes of staff. If he did so, then Company B would contact the relevant authorities. Company B said the Council was aware of its decision.
17. Mr X denied the allegations and actions and considered it harassment. Mr X complained to Company B about the decision. Company B advised Mr X of its duty of care to its staff following concerns over his behaviour towards some staff at the building. Company B confirmed it had excluded Mr X from all buildings it managed until further notice.
18. Mr X made several written complaints to the Council about Company B’s decision in July, August, and September 2022 as he denied doing anything wrong. Mr X complained to the Council because he had not received a response.
19. The Council responded in November 2022 to Mr X’s complaint at Stage 1 of the complaint procedure and apologised for not responding sooner. The Council explained Company B ran and managed the building. It was aware of the matter and fully supported Company B’s decision about Mr X.
20. Mr X complained to a local councillor about the decision and Council’s response. Mr X complained the Council in January 2023 as the Councillor did not respond.
21. The Council replied to Mr X’s concerns in February 2023 and considered Mr X’s complaint as stage 3 because he had completed Company B’s complaints procedure. The Council confirmed it owned the building but leased it to Company B who was responsible for its management. As the Council was not involved in the day-to-day management it was for Company B to consider any request to review their decision to refuse a member of the public access to the premises. And so, Mr X should address any issues to Company B. But the Council would track progress of the complaint to keep updated on the matter. The Council advised Mr X he could complain to us.

My assessment

22. As paragraph three explains we consider whether there was fault in the way an organisation acting for a council made its decision. If there is no fault in the decision making, we cannot question the outcome. Mr X remains unhappy at Company B’s decision to ban him from the community building. I do not consider there was fault in the way Company B made its decision. This is because the evidence shows it met with Mr X, considered his comments and statements from staff before reaching its decision. It also explained the reasons for its decision to Mr X. So, there are no grounds for us to question the merits of the decision to ban Mr X from the building.
23. But the decision does not refer to a right of review to enable Mr X to challenge the decision. So, there is no evidence Company B has had due regard to Mr X’s human rights when dealing with him and making a decision to ban him from the building. This is fault as there should be a formal process laid down that allows for a right of review of such a decision, to enable Mr X to receive a fair hearing.
24. However, in this case the documents show Mr X has been through Company B’s complaints process which has acted as a review. And Mr X has complained to the Council who considered and supported Company B’s decision at stage 1 of its complaint procedure. Because of this I do not consider Mr X has been caused significant injustice to pursue this matter further as the decision has been reviewed.
25. The lack of a formal review process in place is also highlighted by the Council’s response to Mr X’s complaints. This is because while the Council reviewed the decision at stage 1 of its complaint procedure, its stage 3 consideration just advised it was for Company B to review. So, I recommend the Council and Company B ensure there is a formal process providing a right of review of decisions affecting customers using buildings managed by Company B on the Council’s behalf. It will be for the Council and Company B to decide how the formal process will operate. But Council and Company B should ensure any customers are aware of the process and be able to use it. Any such process should have due regard to an individual’s human rights as required by the Human Rights act.
26. While I consider decision to ban Mr X from the community building was one for Company B (and the Council) to take, I do not consider Company B’s comments about Mr X not being within the sightlines of the building or being outside staff homes are within its powers to make. This is because while Company B may control what happens within its buildings, I do not consider it can impose restrictions beyond the building which it has no powers to enforce. So, I consider it fault for Company B to make such requirements causing distress and uncertainty to Mr X.
27. The Council has considered Company B’s decision to ban Mr X and supported it. However, I consider it should have also reviewed the appropriateness of Company B’s requirements to Mr X beyond the ban from building. This is essentially as Company B are providing services for the Council. I consider the Council’s failure to do so is fault causing distress and uncertainty to Mr X.
28. The documents show the Council delayed in responding to Mr X’s complaints about the matter. It has apologised which I consider is suitable action for it to take and so I do not consider there are sufficient grounds to purse this issue further.
29. While Company B has said Mr X’s ban from the building is until further notice it should ensure it considers and reviews any new information Mr X provides regarding its decision.

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Agreed action

30. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the organisation, I have made recommendations to the Council.
31. Within a month of my final decision the Council will:
• Send a written apology to Mr X for the comments made by Company B going beyond the ban for the building and the Council’s failure to consider all the requirements of Company B’s restrictions.
• Ensure there is an approved and formalised process in place between the Council and Company B that provides for a right of review of a decision affecting a person using a community building run by Company B.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I am completing my investigation. I have found no fault in the way the decision to ban Mr X from a community building was made. But I have found fault as the Council and contractor failed to advise of and provide a formal right of review of the decision and to fully consider the requirements of the ban causing distress and uncertainty to Mr X. I have recommended a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman