• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr B complained about the Council restricting his contact with it, which he considers unfair and discriminatory. We find there was fault by the Council in failing to apply its policy or document having done so. The Council has agreed to our recommendation that it should issue an apology to Mr B and review its position in this matter.

The complaint

1. The complainant, whom I shall call Mr B, complained the Council has treated him unfairly and in a discriminatory way, restricting his access based on a wrongful assertion that his contacts with it have been unreasonable both in content and quantity. He reports the Council’s action has upset him very deeply.

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The Ombudsman’s role and powers

1. 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)
2. 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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

1. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of the information it provided in response.
2. Mr B and the Council had an opportunity to comment on my draft decision. I considered all comments received before making this final decision.

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What I found

1. In 2008 Mr B had a grant from the Council for new windows and doors, through the Council’s ‘Staying Put’ team which assists with repairs and adaptations to help people stay in their own homes. In October 2020 he experienced some difficulties with the back door: he could not shut it properly and the compromise to the security of his home made him feel vulnerable. He contacted the Council on 14 October and arrangements were made for a handyman to attend the same day. The notes of the visit say that they were able to get the door closed and locked, and while it would then not open it was at least secure.
2. Mr B telephoned the Council the same day, leaving two voicemail messages asking about who had carried out the works under the grant scheme because he wished to contact them. The Council’s officer noted in an internal email after a telephone call with Mr B that he has been ‘quite rude and started to shout’, and so after giving a warning the officer terminated the call. In the internal email after the call, in addition to noting what had happened during the call the officer asked their manager to assist with locating the information Mr B had requested.
3. The manager advised the officer not to call Mr B, and a letter would be sent instead.
4. Over the next few days Mr B called the Council several times. He left a voicemail message stating that he would call back every day until somebody spoke to him, and on 20 October left a further voicemail message asking to speak to a senior officer as he wished to lodge a complaint. A manager reiterated that staff should not get involved in a dialogue with Mr B over the telephone and that a letter should be sent.
5. A senior officer did then write to Mr B. The letter set out the following:
   “I write in response to your calls and voicemails regarding your door and windows that were completed under a grant in 2008. The guarantee for this work will have now expired, so it is your responsibility to contact a contractor(s) who will be able to look at these and provide you with estimates for any work you wish for these items. During your calls to us you have used rude and offensive language to staff, and this will not be tolerated. Subsequently, I ask that you refrain from contacting the Council in repetition of issues that have been fully responded to by the Council. Please only contact the Council if any new issues arise, by writing only at the address above. Should you continue contacting the Council about issues that have been addressed previously by telephone or writing, the Council will consider restricting your future contact”.
6. On 2 November a link worker from Mr B’s GP’s practice sent an email to the Council in which they noted that communications had been difficult between Mr B and the Council and the relationship had broken down. The worker asked if the Council knew which firm fitted the doors and windows, noting that Mr B was aware it was out of warranty but was keen to know who the contractors were; it was noted Mr B had used a local independent service recently to carry out repairs to one of the doors.
7. The Council replied the next day advising that given its previous interactions with Mr B they would not want to provide contractor details to put them at potential risk. It was noted that a ‘red flag’ warning on the Council’s system indicated no worker should visit Mr B’s home without police officers being in attendance. The Council said he had a history of being verbally abusive to staff and to having made threats of violence, and was ‘flagged as being potentially dangerous’. The Council asked why Mr B wanted to know who had installed the doors and windows, given that he had been advised these items are out of warranty, and so the contractors originally involved had no requirement to be involved in any future repairs.
8. On 10 November, the Council’s customer services team notified the Staying Put team by email that Mr B had made a formal complaint. The email noted the following:

• The officer he had spoken to on the telephone had been very unhelpful, kept talking over him causing him to lose his train of thought, and refused to give him her surname, which he felt should be a requirement;
• The letter from the senior officer said Mr B’s language was inappropriate either when speaking with the officer or when leaving any sort of voicemail. Mr B contested this and wanted proof of his ‘inappropriate’ language, which he maintained was never used; and
• He wanted an opportunity to speak with the manager of the Staying-Put team as well as a formal response to his complaint.
• Mr B had said his initial reason for contacting the team was the door which was not opening correctly, and that problem has been rectified, he wanted to provide feedback to the manufacture of the door, to inform them of the design defect in order to avoid the problem reoccurring in any other case.

1. An exchange of emails took place between the Staying Put team and customer services. Customer services advised a formal stage one complaint response needed to be issued and the complaints process followed, irrespective of the ‘red flag’ marking on file. The Staying Put team understood that a decision had been taken in the past that officers would not engage verbally with Mr B and that he should write in, and that this information should be on the system the Council previously used for complaint record keeping.
2. On 18 November, the Council issued its first-stage response to Mr B’s complaint. That response, with an apology for delay, included reference to the telephone call terminated by the officer and to the letter subsequently issued. The complaint response also included the following:
   “I am sorry if you had taken exception to the word ‘inappropriate’ language but from past incidents in our communications with you and our team, you had been advised that any contact should be in writing, to avoid such instances”.
   The Council also set out that it had responded to the enquiry made on Mr B’s behalf by his GP’s practice and had confirmed the manufacturer’s details were not held, in order that they could communicate this to him. The response did not in fact include that information, however.
3. Mr B contacted the Council again on 25 November and 14 December saying he still had not received a response to his complaint; he asked for it to be posted to him and followed up with a phone call. The Council posted the letter but did not follow it up with a telephone call for the reasons previously given.

The Council’s records

1. The Council’s calls are not routinely recorded. The Council has advised it cannot record calls where payment details may be exchanged, and at present the telephony used does not have allow temporarily disablement of recording, although an upgrade to this across the Council is being considered.
2. The call referred to in paragraph 9 above which was terminated by the officer was not audio recorded. Consequently, there is no evidence of what was said during that call. However, there are records relating to similar matters from previous years.
3. Historical records include the following:

• ‘Red flag’ marking of Mr B’s records at the Council dates from 2010 when it was noted that Mr B became agitated when officers from parking services visited him, and that he had shown them a sword in the boot of his car, stating it was very sharp and could decapitate a person;
• There are internal emails on file from 2010, 2011, 2012, 2015 and 2016 referring to Mr B being rude, verbally abusive, and aggressive, swearing and issuing threats.
• A note of telephone conversation in 2016 during which Mr B asked the officer if they were schooled in England as they did not sound as though they were; what qualifications they had and where they had studied; and said the officer did not speak correctly and did not know how to read a telephone number correctly. The record of the call referred to Mr B having been advised this was considered rude and condescending and that if this continued the call would be terminated; the note says Mr B then said he would complain about the officer.
• In 2019 there is an internal email which references bullying behaviour and inappropriate comments and refers to the possible restriction of contact to written communications.

1. An officer also reports that they recollect a conversation with Mr B in 2017 in which they terminated the call. The officer says that, if they recollect this occasion correctly, Mr B was aggressive in his manner of communication and had made remarks and insinuations about the sexuality of another officer. No documentary evidence from 2017 supporting this recollection has been provided.

The Council’s policy

1. The Council has a policy for dealing with customers who are deemed to be persistent or vexatious complainants, under which it may decide to impose restrictions on contact.
2. The policy includes the following:

• The decision to restrict or stop a customer’s access to the council’s offices and officers can only be taken by the complaint resolution team in consultation with service directors.
• The manager or complaint officer of the service area affected will contact the complaint resolution team to discuss why the complainant’s behaviour is causing a concern, giving clear documented evidence to support this and outlining how the behaviour needs to change.
• The complaint resolution team will send a letter to the customer, outlining the discussion which has taken place with the service manager along with a copy of this policy and procedure. The letter will clearly explain to the customer the actions that the Council may take if their behaviour does not change.
• If the behaviour continues, the complaint resolution team, in consultation with the relevant service director, will make a decision as to the action to take. A letter will then be sent to a customer outlining this decision. All letters will include why we have taken the decision we have; what specific action we are taking; the duration of that action; the date of the three-month review; the customer’s right to appeal against the decision to apply this policy; and the right of the customer to contact the Local Government Ombudsman about the fact that they have been treated as a vexatious/persistent complainant.

Analysis

1. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence. The issue for me is whether the Council has followed its policy and procedure correctly. The evidence provided to me does not show that the relevant steps have been taken in this case.
2. In the email of 2019 referred to in paragraph 21 above, internal enquiries were being made seeking confirmation that Mr B was subject to a requirement to only contact officers via the complaints team, and asking when this was due for review as the officer’s understanding was that this had been put in place some time ago. I have not been provided with any evidence to show that consideration was given at this point to what restrictions were in place and whether the policy had been appropriately followed, including the requirement to review and give a right of appeal.
3. The failure to follow the policy and / or to document the actions taken, was fault. And, as noted above, the Council had an opportunity to look into this and put the matter right in 2019 but it failed to do so, and that too was fault.
4. While the Council may take a decision to restrict contact, in so doing it should also be mindful of any reasonable adjustments required by the individual concerned, in terms of methods of communication. Mr B finds writing difficult due to arthritis, and therefore his preferred means of communication is verbal.

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Agreed action

1. To remedy the injustice caused to Mr B in this case, I recommended that within four weeks of the date of the decision on this complaint, the Council:

• Provides him with a formal written apology; and
• Reviews its position in respect of any contact restriction currently imposed on Mr B, and if the vexatious complainant’s policy is to be applied, ensure that policy is correctly implemented, taking account of the requirement for any reasonable adjustments and following all the relevant steps to ensure that Mr B is appropriately advised in writing of the Council’s position, of the date when any restriction will be reviewed, etc.

1. The Council has agreed to my recommendations.

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Final decision

1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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