Summary: Ms X complained the Council banned her from her local library causing distress. We found fault in the Council’s decision making causing distress and uncertainty. We recommended it apologises to Ms X, pays her £300 for distress, reviews its decisions and acts to prevent recurrence.

The complaint

1. Ms X complains about the Council’s decision to ban her from a library. She says it took account of inaccurate information and was affected by bias. She says it also failed to make reasonable adjustments given her autism.
2. Ms X says she had nowhere to work, study or keep warm during the day causing hardship. She also suffered distress as she felt the Council punished her, despite her being a victim of a hate crime perpetrated by another library user.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
6. 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

7. I spoke to Ms X and I reviewed documents provided by Ms X and the Council.
8. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Council policy

9. In response to enquiries the Council provided a copy of the library byelaws. Of relevance:
• No person shall remain in a library without making proper use of a library’s facilities after having been requested by a library officer to make proper use of the facilities.
• No person shall intentionally or recklessly disturb, obstruct, interrupt, abuse or annoy any other person properly using the library.
• No person shall engage in audible conversation in any part of the library where such conversation is prohibited by notice or after having been requested not to do so by a library officer.
• A library officer may exclude any person who contravenes any of the foregoing byelaws from any library maintained by the library authority under the Act.
10. The Council provided its guidelines for the length of any exclusion. These suggest a one day exclusion for one off unacceptable behaviour, then 3 months, then 6 months and 12 month exclusions depending on the circumstances.
11. The Council provided terms and conditions for Libraries Extra. These say all library users are required to abide by the Library Byelaws and Library Regulations.
12. In response to a request for evidence it had regard to its duties under the Equality Act 2010 when deciding its policies, the Council provided a draft version of a 2022-25 libraries strategy. The Council has since confirmed this was a final copy. On review I note this is not applicable to previously decided policies. And it does not specify how the Council will have regard to the Act in deciding policy going forward.
13. The Council also said there was no specific health and safety policy or risk assessment related to unattended items or audible meetings.

Equality Act 2010

14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. Disability is one of those protected characteristics.
15. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.

Public Sector Equality Duty

16. This duty requires all councils to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act;
• advance equality of opportunity between people who share a protected characteristic and those who do not;
• foster good relations between people who share a protected characteristic and those who do not.
17. The broad purpose of the equality duty is to integrate consideration of equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
18. It is necessary for decision-makers to understand the potential impact of their decisions on people with different protected characteristics and to identify potential mitigating steps to reduce or remove adverse impacts. This should help to ensure that the policy is fully effective for different groups of people.
19. Case law states that it is good practice for a public authority to keep records of its consideration of the aims of the general equality duty when making decisions. If a body is challenged it will be difficult to demonstrate that it has had due regard if no records have been kept. Authorities must publish equality information to demonstrate compliance with the general equality duty. In practice, written assessments of impact on equality, or the relevant sections of decision documents are likely to be a key component of this information. 

Reasonable adjustments for people with disabilities

20. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
21. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
22. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Indirect discrimination

23. Indirect discrimination is when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic. If this happens, the person or organisation applying the policy must show that there is a good reason for it.
24. If an organisation can show there is good reason for its policy, it is not indirect discrimination. This is known as objective justification.

Objective justification

25. Objective justification allows organisations to discriminate in certain circumstances. The organisation must show that its actions or policies are 'a proportionate means of achieving a legitimate aim'. To prove objective justification has happened or is happening:

• the aim must be a real, objective consideration, and not in itself discriminatory and
• there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy.

Principles of good administrative practice

26. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Following the law and taking the rights of those concerned into account
• Understanding the individual circumstances of a case – not falling back on ‘blanket policies’
• Being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete
• Stating the criteria for decision making and giving reasons for decisions
• Explaining clearly the rationale for decisions and recording them
• Having clear and accessible appeal routes
• Being alive to the need for reasonable adjustments to ensure no person is placed at a disadvantage in using a service due to a disability

What happened

27. In September 2022 Ms X complained to her library about a verbal assault.
28. The Council replied it had taken action to address this and she should not engage with the person in future. Separate to this it raised concerns about the number of virtual meetings she held that could be easily overheard. It explained it had received several complaints from other customers. It suggested she use headphones and hold less meetings in the library. It also reminded her not to leave personal possessions in the library.
29. The Council says it received two further complaints in September regarding Ms X holding meetings in the library and leaving possessions, preventing others using the table. It has provided a copy of one of these complaints.
30. The Council received a further complaint about Ms X holding loud conference calls without use of headphones in October. It has provided a copy of this complaint.
31. In October the Council wrote to Ms X. It said:
• She could no longer allow hold online meetings in the library; these were continuing to be disruptive to several other users who had complained.
• She should cease all online meetings from 24 October 2022. This would allow her time to make alternative arrangements; there were several co-working and shared working spaces in the area.
• Personal possessions must not be left in the library when she is not there and this was still happening.
32. The Council says library officers reported recurring issues in November and reminded Ms X regularly about noise and leaving possessions. The Council has not provided contemporaneous evidence in support of this. But I note Ms X does not dispute she continued to use her laptop for meetings and continued to leave possessions.
33. In December the Council received a complaint from a third party concerned about visitors’ behaviour towards Ms X. The Council says it investigated, including checking CCTV and found Ms X in the wrong but took no further action.
34. The Council says library staff witnessed Ms X using her laptop for meetings and speaking loudly so the content of the meeting was audible in January 2023. The Council has not provided dated evidence in support of this. But I note Ms X does not dispute she continued to use her laptop for meetings.
35. The Council wrote to Ms X in January 2023. In summary:
• It imposed a 3 month exclusion starting from 7 January.
• Despite previous warnings and a request to cease all online meetings she continued to hold audible online meetings in the library.
• She continued to leave personal possessions on the table when she left the premises at lunchtime thus claiming the space until her return. This was also a safety issue.
• It had investigated an incident in December and found her behaviour unacceptable.
36. Ms X complained:
• The Council’s letter was baseless and discriminatory.
• She denied holding audible meetings; she wore headphones.
• In December it was her who was abused and she reported this to police as a hate crime. The Council did not hear her account before deciding.
• She needs a break during the day as she is a vulnerable disabled person. She also finds it hard to carry everything so she leaves clothing on the table when she goes outside for a short break.
• She has Autism Spectrum Disorder.
• She relies on the library for internet, warmth, social inclusion.
• Exclusion will cause her hardship and harm. It is unjustified, discriminatory and a breach of the Equality Act 2010 and her civil rights.
37. The Council responded at stage 1. In summary:
• It referred to its correspondence sent to her in September regarding meetings.
• It explained it received complaints from library users of noise even when she was using headphones and there were concerns about data privacy.
• It outlined its investigation into the December incident including details of the CCTV viewed and witness account. It explained it could not follow up with her as did not have her contact details, despite requests for these.
• Several library users had commented on her leaving items unattended at her desk and it had previously asked her not to do this. This was in accordance with the Library Byelaws and in line with its health and safety policy and risk assessments. It could not make exceptions to this, even for people with disabilities. Desks can be used on a first come, first served basis.
• Since the ban it had received reports of her accessing the library when unstaffed. Entering the library via someone else’s membership card was prohibited and could result in withdrawal of membership.
• It maintained the ban was valid.
38. Ms X escalated her complaint. In summary:
• She questioned whether it received any complaints since she started using headphones.
• She denied any calls involved third party personal details.
• She was unhappy about the Council’s conclusions from the CCTV which must have shown the negative behaviours towards her.
• She disputed the two witnesses supported the Council’s conclusions and was unhappy it disregarded a witness that supported her position.
• The Council could have contacted her as she was in the library every day.
• She denied leaving belongings overnight or asking anyone to move. She asked it to investigate the latter.
• She denied library staff verbally reminded her regarding behaviour.
• No letters said she had made people move and none said she was loud, rather one commented she did not make much noise at all.
• She accessed the library when unstaffed as she was freezing cold and had nowhere else to go. If she had not used the library she would have been at risk of hypothermia and related physical harm.
39. The Council’s final response said:
• It would not be carrying out a further investigation because it was unlikely to achieve anything further.
• It found no evidence a three-month exclusion was unjustified or discriminatory.
• She could contact the Ombudsman.
40. Ms X then complained to the Ombudsman. She told us she has autism and severe, enduring mental health difficulties. She said the exclusion led to her having to access wifi to do her voluntary work from the cold library car park. This caused her severe physical suffering. It also meant she was denied safe friendly access to human contact with other library goers with whom she had established pleasant relationships.
41. The Council lifted the ban in April 2023.
42. In comments on a draft decision Ms X said:
• She always used library facilities properly. She never intentionally or recklessly disturbed any other person. And she did not hold any audible conversations, nor was there evidence otherwise.
• Library officers did not remind her about noise or leaving possessions as referred at paragraph 32. She did not make any noise as she engaged in virtual meetings using headphones and the virtual chat function.
• Library officers did not witness her using her laptop and speaking loudly in January 2023 as referred at paragraph 34.
• Leaving items at a desk did not obstruct anyone from using the space.
• The Council’s December investigation was not open or objective. Library staff could have contacted her while she was in the library.
43. In response to a draft decision the Council said:
• Regarding the December incident, it did not follow up with Ms X as she did not raise the complaint herself. However, in retrospect, the officer should have also discussed the incident with her directly.
• The Library Service does not have the correct policies and procedures or Equalities Impact Assessments in place and apologises for this fault. However, although not thoroughly documented, reasonable adjustments are made by officers daily in respect of the needs of customers, including those with disabilities.
• Many of the behaviours referenced are in relation to Libraries Extra days, as well as staffed days, for example, leaving possessions unattended. This is why it referred to those terms.
• The strategy referred at paragraph 12 was a final copy and is published on its website.
• It accepts the recommendations of the draft decision.

Findings

44. My role is to review how the Council reached its decisions and whether it followed a proper decision making process. The Council is entitled to reach decisions based on the information and evidence available and in line with any relevant law or policy. While Ms X may disagree with the Council’s view, that does not allow me to find fault. I can only find fault if the Council did not follow a proper decision making process.
45. The Council’s policies are not published on its website. This means they are not readily accessible to service users and lack transparency. This is fault. I will make a recommendation to prevent injustice to others in future.
46. I have not seen any evidence showing the Council had due regard to the Equality Act 2010 in deciding its policies. This is fault. I will make a recommendation to prevent injustice to others in future.
47. The Council reached its decision on the incident of December 2022 based on the information and evidence seen. However, it did not take account of Ms X’s view and I see no good reason why it could not have contacted her when she attended the library. I therefore find the Council did not consider relevant information before reaching a decision. This is fault. Ms X suffered distress as a result. This is injustice.
48. The Council’s byelaws say users should not obstruct others or hold audible conversations. And the Council’s byelaws and guidance allow it to exclude users for three months. However, the Council did not take account of Ms X’s disability, the impact to her or whether it should make reasonable adjustments before deciding on action. This was relevant information that the Council should have considered. I therefore find the Council did not follow a proper decision making process or have due regard to its duties under the Equality Act 2010. This is fault. I cannot say the Council would have reached a different outcome but for this fault. However, Ms X has suffered distress and uncertainty. This is injustice.
49. The Council did not outline the evidence, law or policy relied on in its decision letter and it did not offer Ms X a right of review of its decision. This is fault. While Ms X sought review and gained further information through the complaints process, I will make a recommendation to prevent injustice to others in future.
50. Upon review the Council maintained its decision that Ms X could not leave items unattended. However, in doing so it relied on health and safety policies and risk assessments that do not exist. It relied on a blanket rule to never allow unattended items, which is a fettering of discretion. And it did not consider alternative measures to achieve its aim, for example by allowing Ms X to leave items with library staff. I therefore find the Council did not follow a proper decision making process or have due regard to its duties under the Equality Act 2010. This is fault. I cannot say the Council would have reached a different outcome but for this fault. However, Ms X has suffered distress and uncertainty. This is injustice.
51. For completeness, I acknowledge Ms X disputes the Council’s comments she made people move and raised data protection risks. However, the Council did not rely on these matters in reaching its decision to exclude and the Council was otherwise entitled to take this view based on the information held. Any impact to Ms X of a hate crime was not relevant to the Council’s decision to exclude and so I would not expect the Council to have taken this into account.

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Agreed action

52. To remedy the injustice outlined above the Council should carry out the following actions:
53. Within one month of the date of my final decision:
• Provide Ms X with an apology for the faults identified at paragraphs 47 to 50;
• Pay Ms X £300 for distress and uncertainty;
• Allow Ms X the opportunity to provide information regarding the incident of December 2022 and then review its decision taking this into account;
• Review its decision on whether Ms X can leave items in the library while she takes a break taking into account its duties under the Equality Act 2010 and provide Ms X with its decision and reasons;
54. Within three months:
• Review all policies applicable to the library ensuring its takes into account the Council’s duties under the Equality Act 2010;
• Take action to ensure it offers service users a right of appeal or review on a decision to exclude;
• Publish any updated library policies on the Council’s website.
• Provide training/guidance to customer contact staff on any new policy and to ensure they are aware to give reasons for their decisions with reference to the evidence relied on and relevant law or policy.
55. The Council should provide us with evidence it has complied with the above actions.
56. The Council has accepted these recommendations.

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Final decision

57. I find fault in the Council’s decision to exclude Ms X from its library causing distress. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman