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Cheshire West & Chester Council (21 001 276)

Category : Other Categories > Other

Decision : Upheld

Decision date : 27 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council has unfairly extended contact restrictions without the right to a review or appeal. Mr X said this called his honesty into question. We find the Council were at fault for not having a right of review against the decision to invoke the policy or restrictions applied, but this did not cause Mr X an injustice.

The complaint

  1. Mr X complains the Council has unfairly extended his contact restrictions without the right to appeal. He says the Council are using this to silence legitimate criticism of its policies and says that it is damaging to his human rights and calls his character into question.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  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 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)
  5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

How I considered this complaint

  1. I have spoken to Mr X and have read the information he has supplied in support of his complaint.
  2. I have made enquiries with the Council and have considered the information it has supplied.
  3. Mr X and the Council have been sent a draft of this decision and I have considered the comments received before making a final decision.

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What I found

  1. The Council’s policy says the decision to manage contact will normally only be taken in exceptional circumstances and after it has considered possible adjustments to its service to help the customer alter their behaviour.
  2. The policy defines unreasonable and unreasonably persistent complaints as complainants who, because of the nature and frequency of their contacts with an organisation, hinder the organisation’s consideration of their, or other people’s complaints.
  3. There are two stages to the managed contact policy which are;
  • Stage 1 – Warning and Monitoring Period; and
        • Stage 2 – Managed Contact Business Case – a senior manager for customer relations will recommend implementing (or rejecting) proposals before this is sent to the Director of Governance for final approval. If approved the complainant gets logged onto a managed contact register and special measures will be applied to the contact relevant to the circumstances of the case.
  1. Reviews of managed contact arrangements will take place quarterly subject to other demands on the service, and no later than every six months from the date of the decision. They will be conducted by the Customer Relations Manager and Senior Manager, in consultation with the relevant senior managers/Directors.
  2. There is no right of appeal for either stage of the managed contact policy. However, the Council explain the right for the complainant to refer this to the Local Government and Social Case Ombudsman.

Our guidance on managing unreasonable complainant behaviour

  1. Our guidance says a council’s managing unreasonable complaint behaviour could include:
  • Examples of the main kinds of ‘trigger’ actions/behaviours which may cause the policy to be invoked.
  • Details of complainant’s right of review/appeal against a decision to invoke the policy and/or any restrictions applied.
  1. It also says that when imposing a restriction on access, councils should have a specified review date. Limits should be lifted, and relationships returned to normal unless there are good grounds to extend them.
  2. A council should tell the complainant(s) of the outcome of the review. If limits are to continue, councils should explain the reasons and state when the limits will next be reviewed.
  3. A complainant who has been treated as behaving unreasonably may make a complaint to us about it. We are unlikely to be critical of the organisation’s action if it can show that it acted proportionately and in accordance with its adopted policy.

What happened

  1. Mr X says the Council unfairly imposed contact restrictions on him after he raised legitimate concerns about issues with site maintenance and hygiene at a mobile home site. Mr X said the contact management restrictions and allegations made against him are a stain on his honesty and character. Mr X has also provided me with information obtained from a freedom of information request that he feels supports his previous complaints.
  2. In November 2019 the Council told Mr X it had decided to treat his contacts in line with its managed contact policy. The policy allows the Council to restrict the way a complainant can contact the Council. The Council said it decided to impose nine restrictions on Mr X’s contact due to unreasonably persistent and abusive behaviour. Mr X disputes his behaviour warranted any restrictions and says the Council used the policy to silence legitimate concern and criticism.
  3. The restrictions limiting Mr X’s contact included a referral to a single point of contact (SPOC), not considering complaints it believed it has already dealt with and diverting his emails. The Council explained all nine restrictions to Mr X and said it would review the decision again in February 2020. Mr B’s details were placed on the managing unreasonable behaviour register.
  4. Between June 2020 and April 2021, the Council conducted several reviews on Mr X’s status under its managed contact policy. On each occasion it decided to keep the restrictions in place. It told Mr X this was because of unreasonably persistent contact with the Council about issues it said it had already dealt with or were better dealt with by the site management.
  5. During the restrictions Mr X raised further complaints with the Council and sought information. The Council responded to Mr X’s new complaints, however, it did not engage with Mr X about complaints it considered closed.
  6. In June 2020, Mr X said he had been unaware of the Council’s correspondence from November 2019. He asked the Council to provide evidence of its allegation that his words were insulting to officers.
  7. In its reply the Council say it provided screenshots of the derogatory language and explained that it had checked its records and not received any undelivered mail. It explained that while it was still imposing restrictions this did not stop Mr X from raising legitimate questions for information, comments, compliments, or new complaints, nor did it bar him from accessing Council services.
  8. In its latest review the Council has decided to keep Mr X on the managed contact register and will review his status in October 2021.
  9. Mr X complained to the Ombudsman in April 2021.
  10. The Council say the restrictions placed did not stop Mr X raising new or legitimate concerns, he just had to do it in a specific way.

Analysis

  1. We are not an appeals body. I cannot substitute my opinion for the professional judgment of the Council. Instead, I must consider whether its decisions were properly taken. In this case that means this should be in line with its internal policy.
  2. The Council’s policy allows for a wide range of circumstances in which it will consider putting in place and continuing contact restrictions. The restrictions placed on Mr X were taken by the Council following what it perceived as derogatory language and unreasonable and repeated requests to deal with matters the Council felt it had previously decided. The Council in deciding to continue the restrictions, told Mr X of its decision and considered all relevant information including more recent contact with Mr X.
  3. The Council’s policy does not include a right of appeal or review, and this is fault. However, the restrictions have not prevented the Council from looking into those issues it considered as new complaints, therefore the Council has not prevented Mr X from presenting his concerns. Each decision to apply or continue the restrictions on contact is a fresh decision and best practice suggests there should be a right of review. This would ensure the Council has made those decisions based on accurate information. If the subject is unhappy with that review the matter can then be referred to the Ombudsman.

Agreed Action

  1. By the 28 January 2022 the Council should review its policy on Managed Contact and reflect on whether it is compatible with our guidance on managing unreasonable complaint behaviour. The Council will write to the Ombudsman to confirm the outcome of this review.

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Final decision

  1. The Council are at fault for not having a right of review against a decision to apply the policy or the restrictions applied. However, this has not caused an injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman

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