Summary: We shall not investigate Mr X’s complaint. Investigation of the Council’s involvement in two incidents is unlikely to reach a clear view about whether there was fault by the Council causing Mr X injustice. If we are not investigating those two incidents, it would be disproportionate to investigate the Council’s complaint-handling.

The complaint

1. Mr X complained to the Ombudsman that the Council did not deal properly with his complaint about an incident near his home and a telephone call. Mr X states this caused him trouble and inconvenience and he felt threatened and belittled.

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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’. 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 injustice is not significant enough to justify our involvement, or it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
3. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
4. 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)

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How I considered this complaint

5. I considered the information Mr X provided. I shared my draft decision with Mr X and considered his comments on it.

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What I found

6. Mr X’s complaint to the Council resulted from two incidents. The first was when Mr X went to investigate a disturbance near his home. He found Council officers and others removing an unauthorised structure (I shall not give more details to protect Mr X’s anonymity). Mr X says a Council officer who was not wearing identification acted aggressively in asking him to leave although Mr X was in a public place and was trying to calm matters down. The Council says some of its staff who were there state the officer was wearing identification, deny the officer was aggressive and suggest Mr X acted aggressively. Mr X states the officer complained of also breached the COVID-19 social distancing guidelines when approaching Mr X. The Council is not clear if this happened but says if it did, it was inadvertent.
7. The second incident was a telephone call between another Council officer and Mr X. Mr X says the officer monopolised the discussion without properly listening to Mr X. He states:

‘We are therefore not talking about specific admonishments, rebukes, upbraids or reprimands but altogether more subtly toxicity of not listening, simply being on transmit, using rhetorical questions to make points “don’t you realise how much effort we have put into this”? do you think it’s fair to criticise my officers”?

‘This is all together more atmospheric chastising and designed to silence, prevent speaking up…’

8. Mr X argues the Council did not properly investigate his complaint about the two matters. He wants the Council to apologise and commit to thinking about or reviewing its approach in future.
9. The complaint to the Ombudsman is principally about how the Council dealt with Mr X’s complaint. As paragraph 3 explained, we will normally only investigate a council’s complaints procedure if we are also investigating the underlying substantive matters that resulted in the complaint to the Council. Here, those matters are the incident near Mr X’s home and the telephone conversation.

The incident near Mr X’s home

10. People who were present have given differing accounts of this incident. In the circumstances, I do not believe investigation by the Ombudsman is likely to be able to reach a clear enough view about what happened.
11. Mr X’s response to my draft decision asked how the Council backed up its claim that there were different versions of the incident and how the Ombudsman considered that. The Council’s response to Mr X stated the Council had spoken to some people present at the incident. I am satisfied there were indeed others present because Mr X’s complaint to the Council stated there were police officers, Council officers and personnel from an organisation linked to the Council. In the circumstances I consider it reasonable to infer from the Council’s response that there are different versions of the incident. It remains my view that investigation by the Ombudsman would be unlikely to reach a clear enough view about what happened.
12. Mr X says he cannot enjoy his property peacefully because he lives ‘in fear’ of the Council deploying officers without COVID-19 safeguards again in future. He states the Council’s action therefore interfered with his right under the Human Rights Act to peaceful enjoyment of his possessions,
13. I note this point. However, citing the Human Rights Act does not make it more likely we would be able to reach a clear enough view about what happened. So this point does not persuade me to investigate this incident.

The telephone call

14. I appreciate Mr X is very dissatisfied with the telephone call, which he took as showing the Council was unwilling to listen genuinely. However, Mr X’s dissatisfaction stems largely from the tone of the call. That can be a matter of perception on which it can be difficult to make definitive judgements about whether there was fault, even if a recording were available. This is not the same as a complaint that, for example, someone used offensive language or gave inaccurate advice in a telephone call, which we might appropriately investigate.
15. I am also mindful that the complaint is about a single telephone call. I do not consider any allegedly inappropriate tone in one telephone conversation about the matters Mr X describes would cause Mr X a significant enough injustice to warrant the Ombudsman devoting time and money to an investigation, irrespective of whether a recording or other detailed evidence is available.
16. Commenting on my draft decision, Mr X said ‘threat and intimidation’ is sufficient injustice to investigate. However, as the complaint here is about the tone of the call and therefore about perception, it remains my view that there is inevitably an element of subjectivity. I consider any injustice to Mr X is less than if, for instance, someone made an express threat in a call. In this particular case, I am still not persuaded any alleged fault by the Council caused Mr X a significant enough injustice for the Ombudsman to investigate.
17. Mr X states the telephone call breached the General Data Protection Regulation. The Information Commissioner has the expertise to decide if data protection law was breached the power to decide and what action to take on any breach. I do not consider there are grounds for the Ombudsman to investigate the telephone call.

The Council’s complaint-handling

18. As we shall not investigate the incidents that gave rise to the complaint, we shall also not investigate the Council’s complaint-handling, for the reason paragraph 3 gave. Such an investigation would not be a suitable or proportionate use of the Ombudsman’s limited resources.
19. Responding to a draft of this decision, Mr X expressed concern about the Council’s culture regarding complaining. However, without specific allegations of fault on which we are likely to be able to reach a clear view and that are likely to have caused significant injustice, there are not good enough reasons for us to investigate the Council’s complaint-handling. It is not the Ombudsman’s role to investigate every complaint or to oversee councils’ complaint-handling generally.

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Final decision

20. The Ombudsman will not investigate this complaint. This is because investigation of the substantive matters is unlikely to be productive and it would be disproportionate to investigate the Council’s complaint-handling in isolation.

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Investigator's decision on behalf of the Ombudsman