Summary: Mr B complains a Council officer threatened him. He says the Council has not complied with his request for information or progressed his complaint to stage two. The Ombudsman will discontinue this investigation as the substantive matters are outside our jurisdiction.

The complaint

1. The complainant, who I refer to as Mr B, complains a Council officer threatened to break his phone and assault him. He complained to the Council but says the Council has not produced the documents he requested and has not dealt with his complaint at stage two.

Back to top

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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

3. 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)
4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

6. I considered the information provided by Mr B. I sent a copy of my draft decision to Mr B and the Council for their comments.

Back to top

What I found

Background

7. In December 2018, while walking, Mr B noticed a maintenance vehicle blocking a road and causing a traffic jam. A worker in a high visibility jackets was applying asphalt to the road. Mr B took photographs and approached to speak to the worker. He says a Council officer threatened to ‘smash his phone’ and ‘smash him’ if he did not go away.
8. Mr B complained to the Council. There was a slight delay in the Council responding to the complaint. The Council said the works were to deal with an emergency defect. It said it understood Mr B’s frustration about the engagement, but he had been walking in live traffic at the time and putting himself and the workers at risk. It said Mr B had engaged directly with the operatives, taken photographs and encroached into their personal space, causing upset.
9. Mr B was not satisfied with the response. He said no employee should speak to someone in that way, regardless of the provocation. He also denied he had been walking in the road. He asked to go to stage two of the complaint procedure. He also made a freedom of information request for risk assessments involving the road works and any correspondence between the Council and its contractors.
10. The Council supplied the risk assessments but not any correspondence. Mr B chased for this and also asked for CCTV footage of the incident. The Council responded to say it was treating this as a subject access request and asked for proof of identity from Mr B. Mr B questioned why it needed proof of identity when it did not before. Mr B has not received any further response from the Council.

Findings

11. Mr B’s concern about the officer threatening him is a personnel issue. It is for the Council to decide whether it will take disciplinary action. As outlined at Paragraph 4 above, we cannot investigate a complaint about a personnel issue.
12. We will also not investigate Mr B’s concern about the Council not properly responding to his request for documentation. Mr B says he has raised this complaint with the Information Commissioner (“ICO”), which the appropriate body.
13. In this case, Mr B has not received information he requested under freedom of information. There seems to be some confusion about whether the request is being dealt with as a freedom of information request or subject access request. These are two different procedures under separate laws. The ICO is best positioned to deal with a complaint of this nature and there are no good reasons for us to investigate instead.
14. We would not investigate a complaint about the works themselves. The Council may carry out necessary emergency works. Mr B may have been concerned about the frustration of motorists. However, he was not a road user himself so did not suffer any significant personal injustice arising from the works.
15. The final part of Mr B’s complaint is the Council not properly responding to his complaint at stage two. However, as we cannot investigate the substantive issues of the complaint, it is not proportionate to investigate this element alone. The Council has provided a complaint response to Mr B, in which it is clear it is not considering disciplinary action. Even if we found fault in the Council not responding at stage two, the injustice is not so significant from this alone that it would justify our involvement.

Back to top

Final decision

16. I will to discontinue this investigation as the substantive matters are outside our jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman