The Ombudsman's final decision
Summary: Mrs C complained the Council wrongly kept restrictions for her contact with the Council in place. She said it failed to consider her health conditions and its restrictions breached her Human Rights. As a result, she said she experienced distress. We found no fault by the Council on the substantial matters of the complaint as it acted in line with its Policy. It apologised for delays in responding to Mrs C’s complaint, which was enough remedy the distress this caused her.
The complaint
The complainant, whom I shall refer to as Mrs C, complained about the arrangements the Council put in place to manage her contact with its officers. She said: the Council failed to take her health conditions and recent autism diagnosis into account when it decided to continue the communication plan it put in place; and the communication arrangement breached her human rights and the Equality Act 2010.
As a result, Mrs C said she had experienced distress due to the impact this had on her physical and mental health.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
As part of my investigation, I have: considered Mrs C’s complaint and the Council’s responses; discussed the complaint with Mrs C; considered the information the Council provided in response to my enquiries; and considered the law and Council Policy relevant to the complaint.
Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The Council’s Corporate complaints policy When the Council receives a complaint its Policy says: it will respond to complaints within 30 working days. It may attempt to resolve complaints informally within this time; if complainants are unhappy with its response, a request for consideration under its stage two process must be made within 20 working days of its response; and it will respond to stage two complaints within 10 working days, but this may be extended to 20 days if the matter is complex.
The Council’s Vexatious Complaints Procedures If the Council considers a complainant is behaving unreasonably, it will consider whether to restrict the complainants access to its services or staff. Its Policy says unreasonable behaviour includes, but is not limited to; aggressive behaviour either physical, verbal or in writing; the volume of trivial or unsubstantiated issues to be taken into account and commented on; pursuing issues with multiple officers and/or other parties; and making excessive demands on the time and resources of Council officers whilst the complaint is being investigated such as excessive calls or emails.
Before applying the restrictions, the Council will tell the complainant their behaviour is unacceptable, and if it continues, it may treat the complainant as vexatious.
If the Council decides to apply restrictions, it will tell the complainant why it has done so, for how long it will last and when it will be reviewed. The Policy lists the restrictions the Council may apply which includes limiting contact to specific mediums such as phone and/or email, and the number of calls it will.
Human Rights The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, and freedom of expression. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
The Equality Act 2010 The Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘ protected characteristics ’ referred to in the Act includes disability.
The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
Background
Mrs C has a son who is in foster care. A court has decided she should have supervised visits with her son. She can also provide written letters for her son to the Council, which it arranges delivery of.
Mrs C has a diagnosis of a Personality Disorder. In 2021, she was also diagnosed to have autism.
In late 2019, the Council told Mrs C her behaviour had become increasingly concerning due frequent negative and verbally aggressive phone calls and emails to Council officers. And, she had also made complaints about all its Social Workers and their line managers to the Council, her MP, the Children’s Commissioner and Social Work England.
In early 2020, the Council decided to put a communication plan in place to restrict Mrs C’s contact with the Council for three months as set out in its Policy. It told her this was because it found her behaviour towards her staff to be unacceptable and her contacts were taking up an excessive amount of officer time.
The Council’s communication plan for Mrs C said she: should only contact the Council through a designated email address she could write to, and voicemail she could call, with her comments and concern. The Council would aim to respond within 5 working days; any meeting between Mrs C and the Council would be witnessed and a written record completed; and supervised contact meetings between Mrs C and her son would be attended by two Council officers.
In 2021 Mrs C told the Council she had been diagnosed with autism.
The Council reviewed its communication plan with Mrs C every three months since it was put in place. On each occasion, it told Mrs C it had decided it was necessary for the plan to remain in place. It said this was because she had continued to breach the arrangement by: continuing her negative nature of phone calls and emails; emailing Children’s Service’s staff directly and adding other Council mailboxes to her correspondence; making attempts to contact an Independent Reviewing Officer directly; making further allegations against its staff; and being verbally aggressive and confrontational in some of the Looked After Child review meetings.
Mrs C’s complaint In Autumn 2021 Mrs C complained to the Council. She said its communication plan was a breach of her Human Rights. She said this was because it: failed to protect her privacy and sensitive information as the email address it had allocated her could be read by anyone in the Council; sought to humiliate her in the Court arena and publicly at contact meetings; had wrongly attempted to silence and its social worker had bullied her with threats of removing contact with her son if she did not agree to the communication plan; failed to respect her right to private and family life as two social workers were watching and commenting on her contact visits with her son; failed to make reasonable adjustments for her anxiety caused by her autism; had discriminated against her as she did not believe any other parent had similar arrangements in place; and discriminated against her for making her attend the Looked After Child review meetings through group conferencing calls.
Mrs C also complained about the restrictions in place during her supervised visits with her son, and believed he was being bribed with expensive items by his foster parents. She asked the Council to have the communication plan removed and to receive her son’s social worker’s contact details.
In response the Council apologised for its delays in responding to Mrs C’s complaint. However, it did not uphold Mrs C’s complaint and found it had not breached her Human Rights. It explained: it found its communication plan had been appropriate to protect its staff from unreasonable behaviour, and it had been reviewed in line with its Policy; it had considered her health conditions and autism diagnosis but was satisfied the arrangements allowed her to write and call the Council with her concerns, and she had support from an advocate for the Looked after Child reviews; it would not provide its social workers details to Mrs C when the communication plan was in place; and she had been able to attend Look After Child Reviews in person, but it changed this to be online group conferencing calls due to COVID-19 guidance and the Council’s policy on limiting in person contact.
Mrs C was not satisfied with the Council response and the way it had handled her complaint. She asked the Ombudsman to consider her complaint.
Analysis Mrs C’s complaint relates to the Council’s decision to put in place its communication plan with her, which restricted how she could access its staff. As this happened in early 2020, her complaint is late.
I have seen no good reason to exercise my discretion to consider the matter before 2021. However, I am conscious the Council’s view has remained the same since the communication plan was put in place in 2020.
The communication plan The Council has reviewed its communication plan for Mrs C every three months after it was implemented. It has continued to find Mrs C failed to adhere to the plan on each occasion. It has therefore kept the restrictions in place.
When Mrs C told the Council about her autism diagnosis, it reviewed its communication plan. It found the arrangement to meet her needs and ensured she had an advocate available to her for support at key meeting such as Looked After Child reviews.
I acknowledge Mrs C disagrees with the Council’s view her behaviour was unreasonable. However, in each review of the communication plan: it explained why it had found she had breached the arrangement; told her how she should contact the Council through the designated email account and phone number; and when it would review the communication plan again.
I have therefore not found the Council at fault. This is because its decisions were in line with is Vexatious Complaints Procedure. Without fault in the process, I cannot criticise the merits of the Council’s decisions.
Human rights and Equality Act Mrs C said the Council had discriminated, bullied and treated her less favourably when it communicated with her and kept its communication plan in place. She said this breached her human rights.
I cannot determine if the Council breached Mrs C’s Human rights or its duties under the Equality Act 2010, but I can consider if it had regard to these.
I found the Council was entitled to restrict her access to its services and staff to ensure it protected its staff from unreasonable behaviour as set out in its Policy. I am satisfied: the Council’s communication plan enabled Mrs C to continue to contact the Council and the social worker who was allocated to her son’s case. She was also able to make complaints and raise concerns to the Council; there is no evidence the Council treated Mrs C less favourably or discriminated against her due to her health conditions. This is because it put in place, and reviewed, its communication plan after having considered these; it properly considered and decided it was necessary for any meeting with Mrs C to be attended by two staff and for a written record to be kept. This was because of the allegations Mrs C had made against its staff; and the Council’s social worker may have put pressure on Mrs C to agree to its communication plan. This is because without an agreed communication plan, Mrs C may not have been able to communicate effectively with the Council regarding her son. I have not found this to be bullying her, but a consequence of her actions and the Council’s decision to restrict her contact.
If Mrs C still believe the Council’s actions amounted to a breach of her Human Rights or the Council duties under the Equality Act 2010, she has the option on bring this matter to court for a determination.
Complaints handling The Council apologised to Mrs C for its delay in responding to her complaint. It acknowledged this was outside the response times set out in her complaint.
While I accept this would have caused Mrs C some distress, I have not found fault by the Council on the substantive matters she complained about. I am therefore satisfied the Council’s apology was enough to remedy the distress its delay caused her.
Final decision
I have completed my investigation with a finding of no fault on the substantive matters complained about.
Investigator's decision on behalf of the Ombudsman