Summary: The Council is at fault as it did not properly follow its policy on unreasonable or unreasonably persistent complainants when restricting Mrs X’ s contact. The Council should remedy the injustice to Mrs X by apologising for the distress caused to her and by reviewing the restrictions on Mrs X’s contact.

The complaint

1. Mrs X complains about the Council’s decision to restrict her contact with the Council which she considers to be unwarranted and has caused her significant distress.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision.

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What I found

5. The Council has a policy on dealing with people who are unreasonably persistent in how they pursue their complaints or whose behaviour is unacceptable. Examples of such behaviour includes making excessive demands on staff time, adopting a scattergun approach and being offensive to staff. The policy provides that the chief officer making the decision should consider whether further action is required before deciding that the complainant should be designated as unreasonably persistent. This includes giving the complainant a warning that if their actions continue the Council may decide to treat him or her as unreasonably persistent. If the Council decides to designate a person as unreasonable or unreasonably persistent it can limit their contact to one named member of staff.
6. The policy provides the officer making the decision to apply the policy will keep a record of the decision including the details of the actions or behaviours which triggered the restrictions and why they are considered appropriate and proportionate. The officer will write to the person advising that their contact has been restricted and why. The letter and the record of the decision will be placed on the case file.
7. The complainant can ask the Council to review the decision. The review will be carried out by the Chief Executive or a senior officer. The Council should also keep any restrictions under review.

What happened

8. Mrs X is a member of a community organisation involved in local activities. In February 2017, officer A, an events officer, contacted Mrs X to offer a meeting to discuss event 1. Mrs X declined a meeting as she considered the Council did not value the contribution of her organisation and was not interested in partnership working.
9. Some months later, officer A contacted Mrs X to invite her to a meeting about event 1. Mrs X responded. She said that officer A’s department had made it clear it was not interested in partnership working.
10. The Council has said that some months later Mrs X spoke at a public meeting at length criticising the Council. The Council has said the comments made by Mrs X were incorrect and her repeated intervention diverted people from the purpose of the meeting. The Council has said officer B, a senior officer, spoke to Mrs X to make her aware of the potentially disruptive nature of her behaviour. Mrs X disputes she was disruptive or that officer B spoke to her.
11. In November 2017 Mrs X sent an email to the Council complaining about the Council’s treatment of people involved in event 1 and raised concerns about the performance of officers. Officer A replied advising Mrs X to refer people to the Council if they had a complaint. Mrs X sent a further email to officer A and copied it to a number of officers and a councillor. Mrs X was critical of officer A in this email.
12. Mrs X made a complaint to officer B, shortly after event 1 took place. She raised a number of complaints about event 1. The Council has also provided a copy of tweets by Mrs X criticising the running of the event and reporting a councillor’s comments. The councillor tweeted a rebuttal and said that Mrs X had misrepresented him.
13. The Council sought legal advice in December 2017 as officers were concerned about the nature and volume of Mrs X’s contacts with the Council. The advice referred the Council to its policy on unreasonably persistent complainants. The Council did not take this action at this time.
14. Officer B responded to Mrs X’s complaint. An exchange of email between Mrs X and officer B took place as Mrs X disputed the content of officer B’s response. Mrs X asked for her complaint to be considered through the Council’s complaints procedure. The Council responded to Mrs X’s complaint at stage two of its complaints procedure. Mrs X sent a further email reiterating her criticisms of the event but advised she would not pursue the matter further.
15. The Council awarded a tender to an organisation to organise an event, which I shall call event 2, on its behalf. A representative the organisation running event 2 contacted officer D, a manager responsible for arts events, to raise concerns about Mrs X’s behaviour towards her at an unrelated event. The representative also forwarded an email to officer D from Mrs X in which she raised concerns about the programme and criticised officer D for contracting out the organisation of the festival.
16. Mrs X then raised a complaint about the Council’s decision to contract out the running of the event to another organisation as she had been working with officers on the programme. She copied this email to councillors. Mrs X also sent emails to other councillors and her local MP complaining about the Council’s decision to contract out the organisation of event 2.
17. Officer E, a senior officer, responded to Mrs X’s complaint. In her response officer E said that she would be looking into a number of issues raised concerning Mrs X’s behaviour towards staff and contractors.
18. Officer E then wrote to Mrs X. She said she had reviewed Mrs X’s communications with the Council between 2017 and the present day. Officer E said she determined the nature and extent of her contacts in relation to a number of issues, including events 1 and 2, was taking an excessive amount of officers’ time. So officer E placed restrictions on Mrs X’s contact with the Council. Officer E said she had taken this step due to the volume of correspondence sent to the Council and the fact this had been sent to many different councillors and staff. Mrs X had made repeated complaints, inflammatory comments within her correspondence and that, overall, officers found the tone and content of some communications to be offensive, derogatory, vituperative and derisive.
19. Officer E said the Council would only deal with Mrs X by letter and she should only direct these letters to officer D. The letter also set out Mrs X’s right to appeal and that the restrictions would be reviewed in six months. The Council has not reviewed the restrictions on Mrs X’s contact due to our investigation.
20. Mrs X did not appeal but made a complaint about the Council’s decision to restrict her contact. Mrs X’s complaint was considered by the Chief Executive as an appeal. The Chief Executive upheld the decision to restrict Mrs X’s contact. However, she did not give reasons for why the restrictions on Mrs X’s contact were reasonable and proportionate.
21. Mrs X considers officer D is not the appropriate officer to be her single point of contact as she had complained about her decision to contract out the running of event 2. Mrs X also considers she could not contact officer D to request other Council services. The Council has said that it considered officer D to be the appropriate single point of contact for Mrs X as she was a senior officer whose remit included arts events.
22. The Council did not warn Mrs X about her contact before it made the decision to restrict her contact. The Council has said the nature of Mrs X’s communications together with her behaviour towards the representative of the organisation running event 2 and subsequent email meant there was an immediate need to manage her communications. Officers had previously focussed on positively engaging with Mrs X rather than managing her contact in accordance with its policy on unreasonably persistent complainants.
23. There is no separate record of the decision to restrict Mrs X’s contact in addition to the letter sent to Mrs X. The Council considers its policy does not require it to keep a separate decision report recording the decision.
24. In response to my enquiries the Council has said that the emails from Mrs X are not sufficient to illustrate the level and nature of contact from Mrs X in recent years. So the Council has interviewed witnesses from within the Council to demonstrate Mrs X’s pattern of contact over the last two years.
25. Mrs X has said the Council’s decision to restrict her contact has caused significant distress and affected her health and wellbeing. Mrs X has also said the restrictions prevented her organisation from working with the Council on events and she considers the restriction should be lifted without further review.

My assessment

26. The Council had concerns about the impact of Mrs X’s contact on the wellbeing of staff. But the Council did not properly follow its policy on unreasonable and unreasonably persistent complainants when making its decision to designate Mrs X as unreasonably persistent and restrict her contact. The Council’s policy provides that the officer making the decision should consider if further action is necessary before deciding that a complainant should be designated as unreasonable or unreasonably persistent. This includes warning a complainant that the Council may consider them to be unreasonably or unreasonably persistent if their actions continue. There is no evidence to show officer E considered if she should issue a warning to Mrs X, or take any other action before making her decision to designate her as unreasonably persistent. This is fault.
27. The Council has said there was an immediate need to limit Mrs X’s contact. We consider it to be appropriate for councils to warn people about concerns about their contact before restricting their contact in all but the most serious of circumstances. A warning makes a person aware that the Council finds their contact to be unreasonable and gives them the opportunity to modify their conduct. While I acknowledge the Council had concerns about the wellbeing of staff, the evidence presented by the Council does not show the situation was so serious as to warrant restricting Mrs X’s contact without issuing a warning to her. And, as stated above, there is no evidence the Council considered if it should issue a warning to Mrs X at the time it restricted her contact.
28. Furthermore, the Council had concerns about the nature and impact of Mrs X’s contacts on the wellbeing of staff in December 2017 as it sought legal advice at that time. This advice referred to the unreasonable or unreasonably persistent complainant’s policy. The Council could have considered its concerns about Mrs X’s contacts in the context of that policy and issued a warning at that time. So, on balance, the Council’s failure to issue a warning before restricting Mrs X’s contact is fault and it was heavy handed.
29. In response to my enquiries the Council said its policy does not require a separate record of the decision to designate a person as unreasonably persistent from the decision letter. But the policy’s reference to placing both the letter and record of the decision on the case file shows the requirement for a record of the decision in addition to the decision letter. The key point here is that the Council must have a proper audit trail of its decision to designate a person as unreasonable or unreasonably persistent to show how it applied its policy and reached its decision. The record should include the factors for its decision, the evidence relied on, the consideration of whether further action is necessary before restricting contact and reasons why it considers its actions to be proportionate. The Council’s failure to keep a proper record of its decision in accordance with its policy means it cannot demonstrate it properly followed its policy and considered all the relevant factors when reaching its decision. This is fault. The Council has acknowledged it should have kept a record of the decision.
30. The Council interviewed a number of people in response to my enquiries as it considered Mrs X’s emails did not show the extent of officers’ concerns about Mrs X’s contact. This was inappropriate. The Council can only rely on the evidence available when making its decision. It cannot justify its decision with new evidence obtained after the event. I am mindful of the Council’s position that this was not new evidence and it does not undermine the quality of the Council’s decision. But the Council cannot demonstrate this evidence was available at the time it made the decision. The Council should have fully documented all the evidence and its concerns at the time it made its decision. The fact the Council has considered it necessary to obtain more evidence to justify its decision casts doubt on whether it had sufficient evidence to restrict Mrs X’s contact.
31. Mrs X considers officer D is not an appropriate single point of contact and that the Council should not have asked her to only contact officer D by letter as she was involved in her complaint. Officer D is the officer responsible for arts events in the borough so she is an appropriate point of contact. Mrs X could also request other services by writing to officer D. The Council’s policy provides it can restrict a person to contacting the Council by letter. So it is not at fault in asking Mrs X to contact officer D by letter.
32. The Chief Executive considered Mrs X’s complaint as an appeal. But her letter does not explain why she considered the restrictions to be reasonable and proportionate. Councils have to give proper reasons for their decisions and the failure to do so is fault.

Injustice to Mrs X

33. The Council’s failure to issue a warning to Mrs X about her contact denied her the opportunity to modify the level and nature of her contact. But I cannot know, on balance, if Mrs X would have modified her contact and if the Council would have considered it necessary to proceed to restricting her contact. The Council’s failure to document its concerns and evidence at the time it made the decision to restrict Mrs X’s contact calls into question the soundness of that decision. But I cannot conclude, on balance, that the Council would not have restricted Mrs X’s contact at that time or sometime in the future if it had properly followed its policy. I therefore cannot recommend the Council removes the restriction without further review.
34. In the event we find fault in how a council has reached a decision we normally recommend it reviews that decision. However, it is not possible for the Council to carry out a fair and transparent review of its decision to restrict Mrs X’s contact due to the lack of documentary evidence of its concerns at the time it made the decision. An appropriate way forward is for the Council to now carry out its overdue six month review of the restrictions.
35. The decision to restrict Mrs X’s contact has caused significant distress to her and this distress will be increased by the faults in how the Council reached this decision. The Council should apologise to Mrs X for the distress and uncertainty caused by the faults in how it reached its decision. I am mindful Mrs X considers the restrictions prevented her from contacting the Council and from her organisation for working with the Council. But Mrs X could have contacted the Council by letter. I am not persuaded the restrictions prevented other members of Mrs X’s organisation from contacting the Council about events. I therefore consider an apology is an appropriate and proportionate remedy.

Agreed action

36. That the Council:

1. Sends a written apology to Mrs X for the distress caused to her by the Council failing to follow its policy when reaching its decision to restrict her contact.
2. Carries out the six month review of the restrictions on Mrs X’s contact to decide if the restrictions should be cancelled. The review should be carried out in accordance with the Council’s policy on unreasonably persistent complainants. The Council should ensure it keeps a proper record of the decision and provide a full explanation of its decision to Mrs X and the Ombudsman. The Council should take the action at a) and b) within one month of my final decision.
3. Reviews its policy on unreasonable and unreasonably persistent complainants to ensure officers are aware that warnings should be issued in all but the most serious circumstances before restricting contact. The policy should also state that officers must keep a record of the decision to restrict a person’s contact. This is to ensure the Council has a proper audit trail of how it applied the policy and reached its decision. The Council should provide the Ombudsman with a copy of the revised policy within three months of my final decision.

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Final decision

37. The Council is at fault as it did not properly follow its policy on unreasonable or unreasonably persistent complainants when restricting Mrs X’ s contact. The Council has agreed to remedy the injustice to Mrs X as recommended so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman