Summary: Miss X complains the Council unfairly placed her on its Unreasonable Complainant Behaviour register. Although we have not seen any evidence of fault in the Council’s decision to place Miss X on the register, we cannot see that it considered an appeal from Miss X in line with its policy, and we have therefore made a finding of fault. The Council has agreed to the recommendations we proposed.

The complaint

1. Miss X complains that following a mental health crisis, she was unfairly placed on the Council’s unreasonable behaviour register. Miss X also complains about how her complaint was handled. Miss X says that as result of these events, her mental state has worsened. Miss X would like the Council to take her off the register, and investigate her concerns about its officer’s conduct.

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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. 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)
4. 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.
5. 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

6. I spoke with Miss X and considered the information she provided. I made enquiries with the Council and considered its comments and the documents it sent. I considered the comments from Miss X and the Council in response to my draft decision.

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What I found

Council policy

7. The Council has a “Managing Unreasonable Customer Behaviour Policy” which is available on its website. A complainant may be considered to be behaving unreasonably where they meet one or more of the following criteria (the below list is not exhaustive):
• Persistently change the substance or basis of the complaint without reasonable justification whilst the complaint is being addressed
• Continually raise new, minor or trivial complaints issues
• Continually submit additional complaints related to an initial complaint already submitted,
• Persistently fail to identify or confirm to the Council the issues they wish to complain about
• Refuse to accept assistance to clarify their complaint for no legitimate reason
• Not allowing the Council time to respond, by making excessive amounts of contact before the specified time to respond has passed
• Insist on the complaint being dealt with in ways which do not follow the complaints procedure. For example, a complainant forbidding any written record of the complaint
• Make persistent and unreasonable demands or expectations of staff and/or the complaints process (e.g. a complainant who insists on immediate responses to numerous, frequent and/or complex letters, faxes, telephone calls or emails)
• Harass or verbally abuse or otherwise seek to intimidate staff dealing with their complaint
• Deny statements he or she made at an earlier stage in the complaint process
• Electronically record meetings and conversations without the prior knowledge and consent of the other person involved
• Adopt an excessively ‘scattergun’ approach, for instance, pursuing a complaint or complaints with various officers, offices and organisations at the same time
• Persistently refuse to accept the outcome of the complaints process, repeatedly arguing the point, and/or denying that an adequate response has been given
• Make what appear to be groundless complaints about the staff dealing with the complaints and seek to have them dismissed or replaced where there is no risk of conflict of interest
8. The policy sets out that the Council should write to the complainant to outline and warn them about their behaviour and the consequences of further action. This is formal warning 1. The issuing of a warning 1 is a decision of the relevant Head of Services. Depending on the circumstances it may be appropriate for a further formal warning 2 to be sent. Where the complainant has demonstrated extreme unreasonable behaviour, the procedure actions may be implemented without the complainant receiving a warning.
9. Where the Council has concerns about a complainant’s well-being, it should check whether the complainant is known to Floating Support services. The Floating Support service is there to provide services for residents with support needs.
10. Making a decision to restrict a customer / resident from a service is considered at a senior level. Decisions are made by the Borough solicitor and or the Director or Assistant Director of the service. The Borough solicitor and or the relevant Executive Director or Director will consider the case as per the evidence presented and will decide whether a complainant’s behaviour is unreasonable under the procedure and merits further action.
11. Where a complainant’s behaviour is found to be unreasonable by the Borough Solicitor or relevant Director of Assistant Director, the following actions may be implemented to manage their behaviour. This list is not exhaustive and other actions may be used as appropriate in line with the nature of their unreasonable behaviour.
• Requesting contact in a particular form only (e.g. contact by letter only)
• Placing restrictions on telephone calls to specific times and days of the week
• Requesting that the customer enters into a contact agreement setting out their future contact
• Placing restrictions on the amount of time officers will spend investigating their complaints
• Where relationships have broken down, requesting that the customer uses an appropriate advocate to act and contact the Council on their behalf
• Banning the complainant from sending emails to some or all council officers
• Requiring contact to take place with one named member of staff / team only
• Call witnessing, e.g. call recording; note that the customer should be informed
• Meeting witnessing, e.g. face to face contact to take place in the presence of a witness
• Letting the complainant know that the Council will not reply to or acknowledge any further contact from them on the specific topic of that complaint
• In some circumstances, the Council may decide that it is appropriate to severely reduce or completely stop responding to a particular customer. However, all letters should be read to ensure that there are no new relevant complaints raised
• Banning the complainant from visiting any council building (except by appointment
12. Decisions pursuant to the above should be recorded in a letter to the complainant, which should say when this decision will be reviewed. According to the Council’s policy, this is its formal notification of being on the Unreasonable Complainant Behaviour register.
13. Where a complainant is designated an unreasonable complainant, they have the right to appeal. Appeals will be considered by an Executive Director or the Chief Executive.

Background

14. Miss X originally raised a complaint with the Council pertaining to how it handled a noise issue with her neighbour. Unhappy with the Council’s stage 1 response, the matter was escalated to stage 2 of the Council’s process.

What happened

15. This decision statement covers the key events and is not intended to be a comprehensive account of everything that happened.
16. During the stage 2 review of Miss X’s complaint, there was a telephone conversation on 1 April 2022 between Miss X and a Council officer, Officer A. I have not been able to obtain a copy of the call or a transcript as the Council does not have one. I have received comments from Officer A pertaining to the call itself.
17. Officer A says during the call, Miss X became verbally abusive and was shouting and screaming at her.
18. Officer A says she stayed on the phone with Miss X because she was concerned for her wellbeing. Officer A says Miss X threatened to commit suicide and so she advised Miss X that she would call for the police and an ambulance service to attend to her.
19. Officer A says that Miss X became more irate and verbally abusive when she suggested she was going to call for the police and an ambulance service, and so she informed Miss X she would need to terminate the call. Officer A described the call as unacceptable and deeply distressing. Miss X disputes that she was abusive in any way.
20. Police attended to Miss X, and the Council says it was informed by the Police that Miss X had stated her comments on committing suicide were not serious and that she meant no harm.
21. On 4 April 2022, Officer A wrote to Miss X to advise her she would no longer be dealing with her stage 2 review. Officer A advised Miss X that abuse of Council staff was not acceptable and would not be tolerated. Officer A informed Miss X that she would no longer be responding to any more emails and that any further correspondence should be directed to Officer B.
22. Miss X wrote back to Officer A to dispute that she had abused her and requested that Officer A does not contact her again in the future.
23. On 5 April 2022, Officer B contacted the Council’s ASC (Adult Social Care) services to inform them of the events that took place on 1 April 2022. The Council says that ASC services made contact with Miss X shortly thereafter, but Miss X disputes this.
24. Later that day, the Council sent a letter to Miss X informing her of its decision to place her on its Unreasonable Complainant Behaviour register. In a telephone conversation between Officer B and Miss X shortly after, Miss X requested the Council cease contact with her.
25. The Council says the letter it sent to Miss X on 5 April 2022 was a draft copy and sent accidently. The Council resent the final version on 8 April 2022.
26. In the Council’s letter, it said police informed it that Miss X stated her comments on committing suicide were not serious and that she had meant no harm. The Council also said that Miss X had made a high level of telephone calls and emails to officers which contained abusive language.
27. The Council informed Miss X it would review its decision after one year, on 4 April 2023. The Council also attached a copy of its Unreasonable Complainant Behaviour policy.
28. The Council informed Miss X that she should no longer contact Officer A and that she must pre-arrange any future phone calls with the Council by agreeing a time and date first.
29. In the draft letter the Council sent to Miss X on 5 April 2022, it said it considered she had engaged in extreme unreasonable behaviour that deliberately sought to cause worry and was abusive. This sentence was omitted from the final version sent to Miss X on 8 April 2022.
30. Following the Council’s decision letter, Miss X wrote to the Council to challenge that it had not given her the opportunity to appeal the letter. The Council did not initially respond.
31. Later that month, Miss X contacted the Council to inform it that she had not heard from the Council. The Council responded to Miss X that it had not contacted her as she had asked the Council to cease communications. The Council advised Miss X it would have the appropriate officers contact her to provide an update.
32. At the end of April 2022, the Council contacted Miss X to inform her it was investigating her concerns at the stage 2 review. The Council sought clarification from Miss X who confirmed that in addition to the previous complaint raised regarding the noise issues, she was unhappy at being placed on the Unreasonable Complainant Behaviour register.
33. In early May 2022, the Council wrote to Miss X to advise her that it had no record of her being placed on the Unreasonable Complainant Behaviour register.

Analysis

Were the Council at fault in its decision to place Miss X on its Unreasonable Complainant Behaviour register?

34. Based on the evidence available, the Council has properly followed and applied the key points of its “Unreasonable Complainant Behaviour Procedure”.
35. Although the Council did not warn Miss X it was considering limited her contact, in its policy, it states that where a complainant has demonstrated extreme unreasonable behaviour, the procedure actions may be implemented without the complainant receiving a warning.
36. The Council decided to restrict Miss X’s contact with it, and so it formally sent Miss X a letter to inform her of its decision. The Council did this because of Mr X’s behaviour – which the Council decided was unacceptable
37. In line with its policy, the Council informed Miss X about the restrictions that would be put in place. The Council also informed Miss X how long the restrictions would apply for and when these would end.
38. Miss X has mental health issues, and the Council are minded to take the appropriate additional actions. Following the incident on 1 April 2022 between Miss X and Officer A, the Council made a referral to ASC services. It was good practice to see the Council taking account of Miss X’s mental health and immediately referring her to ASC services.
39. The Council says that ASC services contacted Miss X shortly after the referral to offer support but Miss X disputes this. I have not been able to confirm if the call took place. From the evidence available to me, I can see that the Council acted quickly to make a referral to ASC services where the matter was picked up an allocated to a mental health officer. Internal communications demonstrate that ASC services planned to call Miss X on 5 April 2022 and I therefore conclude that on the balance of probabilities, the call is likely to have taken place.
40. We may not question the merits of decisions which have been properly made. We do not comment on judgements councils make, unless they are affected by fault in the decision-making process. In this case the council followed its procedure when it made a decision to add Miss X to its Unreasonable Complainant Behaviour register.

Did the Council allow Miss X an opportunity to appeal its decision to place her on its Unreasonable Complainant Behaviour register?

41. The Council says it did not originally respond to Miss X’s email to appeal because she advised it to cease contact with her, and here I have made a finding of fault. It was poor administrative practice of the Council not to have thought more carefully about the implications of agreeing to Miss X’s request for no further contact given her outstanding complaint and the possibility of an appeal request.
42. After Miss X again contacted the Council to notify it about her desire to appeal, the Council instead considered the matter at its stage 2 review process alongside her original noise complaint. Once the Council finished its review, it concluded that Miss X had not been placed on its Unreasonable Complainant Behaviour register. When I asked the Council to comment, it said that the information was incorrect an apologised for its error.
43. As per the Council’s policy, where a complainant is designated an unreasonable complainant, they have the right to appeal. Appeals should be considered by an Executive Director or the Chief Executive.
44. Miss X expressed to the Council that she wanted to appeal its decision, and I cannot see that an appeal has been considered by either an Executive Director or the Chief Executive at the Council. The only consideration of Miss X’s complaint with being placed on the Council’s Unreasonable Complainant Behaviour register is when it considered the matter at stage 2 and concluded that it had not taken such an action. I therefore find the Council at fault for failing to process an appeal for Miss X in line with its policy. This caused an injustice to Miss X as she should have had an opportunity to have the decision reviewed by an Executive Director or the Chief Executive at the Council.
45. The Council included a copy of its Unreasonable Complainant Behaviour procedure alongside its decision letter it sent to Miss X. The Council should be minded that it would be better administrative practice to communicate a complainant’s appeal rights to them clearly.

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Agreed actions

46. In order to prevent similar issues occurring again, the Council has agreed to take the following actions:
1. Should Miss X wish to appeal the Council’s decision to place her on its Unreasonable Complainant Behaviour register, the Council should process an appeal in line with its policy.
2. The Council should explain what it will do to improve its record keeping and internal sharing of information, in light of the inaccurate findings in its stage 2 review.
3. The Council should amend its decision template letter to clearly give complainants their appeal rights, or to sign post directly to where the appeal rights can be found.
47. The Council should complete actions a-c within two months of the final decision statement.

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Final decision

48. I have concluded my investigation having made a finding a fault by the Council. Although I have not seen any evidence of fault in the Council’s decision to place Miss X on its Unreasonable Complainant Behaviour register, I cannot see that it considered an appeal from Miss X in line with its policy. The Council has agreed to the recommendations I proposed.

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Investigator's decision on behalf of the Ombudsman