Summary: the Ombudsman finds there was fault by the Council when it imposed restrictions on Ms B’s contact with it. But we have not found that this caused injustice to Ms B.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains the Council has unfairly imposed its vexatious complaints policy (VCP) and failed to respond to her complaints. She says that the Council is bullying her and seeking to evict her from her home.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).
3. 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. 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

5. I have considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also invited the complainant and the Council to comment on my draft decision.

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What I found

6. The Council successfully prosecuted Ms B for housing benefit fraud. Ms B repaid the Council a substantial sum. But in 2016 she complained to the Council that it was recovering another housing benefit overpayment of £2094 which she said was incorrect. She said that the large payment she had made had included this
7. Ms B also made complaints to various Council departments regarding:

• The way the Council commenced recovering the overpayment.
• A missing backdated benefit period.
• The Council not returning documents it had seized during the fraud investigation.
• The Council agreeing to deal with her queries via the complaints procedure at a court hearing, but then failing to respond.
• Whether the Council had fully refunded a rent account credit after benefit payments.

8. The Council replied to Ms B’s complaints and correspondence between January and March 2016. It advised Ms B that she had appealed about the overpayment and the First Tier Tribunal had dismissed her appeal. It also advised the overpayment of £2094 was not part of the payment she made in respect of the criminal prosecution. It responded to other elements of Ms B’s complaints.
9. In March 2016 the Council warned Ms B that if she continued to send repeat requests and inundate officers with communications which were deemed repetitive and obstructive it would have no other option but to invoke its Vexatious Complaint Policy. It sent Ms B a copy of its policy.
10. Before she had received the Council’s warning, Ms B wrote further to the Council regarding other aspects of her complaints. The Council replied and repeated its warning regarding the VCP. It said that Ms B had not allowed the Council time to respond to her letters. It also said the volume of her correspondence was becoming obstructive to its operations and if it continued it would have no other option but to invoke the VCP.
11. Ms B complained at stage three because she remained dissatisfied with the Council’s response. The Council replied at stage three but did not uphold Ms B’s complaint. It said it would not dismiss its claim for the overpayment of £2094. The Council also responded separately regarding the backdated credits of housing benefit it had made to the rent account.
12. Ms B complained to the Ombudsman in May 2016 regarding the overpayment. The Ombudsman’s decision was that the matter was outside his jurisdiction because Ms B had appealed to the First Tier Tribunal.
13. Later in May 2016 Ms B asked the Council to use its discretion not to recover the overpayment of £2094. The Council replied that it would not stop recovering the overpayment because Ms B owed the money.
14. In September 2016 Ms B asked the Council to carry out a mandatory reconsideration of the overpayment decision. She said that she had been advised in February 2016 by the judge at the criminal proceedings court hearing that she should seek resolution through the complaints procedure. She had complained to the Council and she had raised this with the Ombudsman, but he had decided it was outside his jurisdiction. The Council replied that it did not agree it should reconsider its decision and a mandatory reconsideration did not apply in this case.
15. Ms B complained to the Ombudsman again in October 2016 regarding how the Council recovered the overpayment from her. The Ombudsman decided that the matter was outside his jurisdiction because it related to matters Ms B had appealed about to a tribunal and other aspects were regarding court matters.
16. In November 2017 Ms B complained to the Council that it had unfairly threatened to invoke the VCP in 2016. She said that she had tried to follow the Council’s complaints process as this had been agreed in court in February 2016. but the Council had threatened her with the VCP, saying her letters were long and complex. However, she said that matters were complex and could not be explained in brief. She had to complain to different departments. She did not feel the Council had responded to all the issues she raised and she did not agree with the responses.
17. The Council replied in December 2017. It noted her complaint but said that it had reviewed her correspondence and repeated claims that the Council was wrong to recover money from her. It had compiled a report regarding her correspondence to it and it had decided that it would impose the VCP. It said it did not take the decision lightly and it was based on evidence of unacceptable behaviour. In Ms B’s case it said that the level and persistence of her communications satisfied the criteria in the policy, along with the fact that she appeared unwilling to accept legal judgement. It considered her recent letter was an attempt to revisit historic issues and keep her complaint active.
18. The Council said that its officers would not read or respond to correspondence from her apart from the following exceptions:
• Reporting housing benefit changes or review forms
• If she needed to report a repair to the Council
• In cases of genuine emergency relating to the safety of herself or others.
19. The Council said this sanction would remain in place for two years. However, it would review the decision after one year to see if the position had changed sufficiently. The Council also said that if Ms B needed to communicate regarding other matters it must be through the use of an independent and professional third party such as an advice agency, the local mediation centre or a solicitor.
20. Ms B complained to the Ombudsman that the Council had unfairly imposed the VCP. She said:
• The Council had not informed her that it had introduced a VCP in 2010.
• The VCP was unfair and designed to silence tenants.
• She had not been abusive to officers.
• She had an agreement with Council solicitors to put her complaint through the Council’s complaint procedure.
• She had not inundated the Council with correspondence. She had replied to officers following advice and direction and raised issues to the different departments. She had asked for a single point of contact to simplify matters but the Council had not agreed.
• She had made other complaints since the VCP with difficulty such as one to the Information Commissioner’s office which it had upheld against the Council.

Analysis

21. The Council’s VCP sets out a number of criteria or complainant behaviours that the Council must consider before it invokes the VCP sanctions. These include:
• Pursuing a complaint when the complaint procedure has been fully exhausted.
• Changing the substance of the complaint or continually raising new issues, questions or further concerns whilst the complaint is being addressed.
• Being unwilling to accept evidence or denying receipt of an adequate response in spite of correspondence specifically answering questions.
• Making an excessive number of contacts placing unreasonable demands on Council staff.
• Adopting a scattergun approach by making a complaint or complaints not only to the service, but to elected members, MPs, other Councils, auditors, standards committee and the Ombudsman.
• Refusing to use the formal process, insisting on going straight to the top.
22. Based on the information I have seen it does not appear there is fault by the Council regarding its decision to impose the VCP. The criteria above were met according to the evidence supplied to the director making the decision. The evidence I have seen shows that the number and length of Ms B’s communications to various departments was significant. It also appears that she repeated the same or similar questions at length. While I note that Ms B says the issues were complex, it appears that the Council fully understood the issues Ms B raised. The Council responded a number of times regarding the same issues, but Ms B was not willing to accept the outcome. She was unwilling to accept that the issues had been considered by the First Tier Tribunal and therefore the Council had a legal right to pursue the overpayment as her appeal had been unsuccessful. The Council did not consider there were grounds for it to use its discretion not to recover the overpayment. While I note Ms B said she had followed the complaint process and had written as directed to different departments resulting in several strands of her complaint, I see no fault in the Council coming to the decision that the correspondence was repetitive and that she was unwilling to accept the responses. The Council warned Ms B that it may invoke the policy and appears to have followed its VCP procedure in passing a report to the relevant director for consideration when she continued.
23. I have considered whether the Council imposed the VCP correctly and in accordance with its policy. The sanctions available to the Council are
• to limit contact to a single point of contact (SPOC);
• to require the complainant to engage in mediation with the relevant council service to agree a reasonable means of communicating;
• to accept no further correspondence from the complainant subject to limited exceptions (emergencies, an appropriate service request through the appropriate channel, or a financial transaction).
24. The Council’s VCP also states that the complainant may wish to communicate with the Council through an independent third party such as a mediation service, a legal representative, or an advocacy service.
25. In Ms B’s case the Council decided to accept no further correspondence except contact regarding housing benefit changes or reviews, repairs and emergency contacts. There is no fault in this.
26. I asked the Council whether it considered a single point of contact or mediation with the services. Ms B had suggested that a single point of contact would be helpful to her and the Council. The Council responded that it had considered a single point of contact, but it had rejected this because it would have been unfair for a single member of staff to deal with the volume of correspondence from Ms B in addition to other duties. The Council said it had also considered but rejected the idea of mediation because of the number of departments that Ms B was in contact with. I have not found fault here.
27. However, the Council also stated that if Ms B needed to communicate on other matters “this must be through an independent and professional third party” such as an advice service, a mediation service, or a solicitor. The VCP does not set this as a sanction, but rather as an option. I consider that this is fault as it is not a sanction available to the director to impose. However, I do not consider that this fault caused injustice to Ms B. She did not make contact via a third party but continued to write to the Council directly.
28. The Council also stated that the sanction would be in place for two years but would be reviewed after one year. Any review should be a genuine one with the possibility that the sanction would be lifted. The VCP imposed by the Council did not appear to have a genuine chance of being removed at the one year review. I asked the Council if it had reviewed the sanctions, what it had considered and the outcome. The Council said it had not reviewed the sanctions in December 2018 as it should. It did this in March 2019. The Council wrote to Ms B and apologised for the delay. It advised it had continued to receive correspondence from her after it had imposed the VCP. It had decided to continue the VCP for the two year period. However, it considered it should also allow her a single point of contact within the department. I consider that the Council’s delay in reviewing the VCP after one year is fault. However, I do not consider this caused Ms B injustice. As I have found previously, Ms B has continued her complaints regarding the original subjects and has raised further complaints.

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Final decision

29. I have found fault by the Council, but that this did not cause injustice. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman