Guidance on Unreasonably Persistent and Vexatious Complainants
RELATED CHAPTERComplaints and Representations Procedure
Dealing with a complaint is generally a straightforward process. In a small number of cases, people pursue their complaints in a way which can either impede the investigation of their complaint or can have significant resource issues for the Council. This can happen either while their complaint is being investigated, or once the Council has finished dealing with the complaint.
It is important to distinguish between:
- People who make a number of complaints because they really think things have gone wrong;
- People who make unreasonably persistent complaints.
If the complainant is persisting because his complaints have not been considered in full then we must address this (normally by invoking the next stage of the complaints procedure).
However, if the Council has considered that matter fully and has demonstrated this to the complainant, then we need to consider whether the complainant is now unreasonably persistent.
The Council is committed to dealing with all complaints equitably, comprehensively and in a timely manner. It does not normally limit the contact which complainants have with Council staff and offices. The Council does not expect staff to tolerate behaviour which is abusive, offensive or threatening and will take action to protect staff from such situations.
3. Aim of Guidance
The aim of this guidance is to contribute to the Council’s overall aim of dealing with all complainants in ways which are consistent and equitable.
It sets out how the Council will decide which complainants will be treated as vexatious or unreasonably persistent, and what the Council will do in those circumstances.
This guidance runs alongside existing corporate policies and guidance relating to equalities, health and safety, and dignity and respect at work, and should only be pursued where absolutely necessary.
4. Definition of Unreasonably Persistent and Vexatious Complainants
The Council defines unreasonably persistent and vexatious complainants as those complainants who, because of the frequency or nature of their contacts with the Council, hinder the Council’s consideration of their or other people’s complaints. The descriptions ‘unreasonably persistent’ and ‘vexatious’ may apply separately or jointly to a particular complainant.
There is a difference between ‘unreasonably persistent’ and ‘vexatious’ complainants.
A vexatious person in this context is someone who is not seeking to resolve a dispute between themselves and the Council but is seeking to cause unnecessary aggravation or annoyance to the Council.
Unreasonably persistent complainants or vexatious complainants may have justified complaints or grievances but are pursuing them in inappropriate ways. Alternatively, they may be intent on pursuing complaints which appear to have no substance or which have already been investigated and settled. Their contacts with the Council may be amicable but still place very heavy demands on staff time, or they may be distressing for all involved. Demands on staff time need to be assessed appropriately - on occasion, a little more time up front to understand the issue may actually lead to less time being spent on the issue in total.
5. Actions and Behaviours
Below are some of the actions and behaviours of unreasonably persistent complainants and vexatious complainants which the Council may experience. This policy to be invoked if one of more of the following triggers occur and depending on the individual merit of the case. This list is not exhaustive and one single feature on its own will not necessarily imply that a person will be considered persistent and/or vexatious:
- Refusing to specify the grounds of a complaint, despite offers of assistance with this from staff;
- Refusing to co-operate with the complaints investigation process while still wishing their complaint to be resolved;
- Refusing to accept that issues are not within the remit of a complaints procedure despite having been provided with information about the procedure’s scope;
- Refusing to accept that issues are not within the power of the Council to investigate, change or influence (examples could be something that is the responsibility of another organisation);
- Making what appear to be groundless complaints about the staff dealing with the complaints, and seeking to have them replaced;
- Changing the basis of a complaint as the investigation proceeds and/or denying statements he or she made at an earlier stage;
- Introducing trivial or irrelevant new information which the complainant expects to be taken into account and commented on, or raising large numbers of detailed but unimportant questions and insisting they are all fully answered;
- Electronically recording meetings and conversations without the prior knowledge and consent of the other persons involved;
- Persistently approaching the Council through different routes about the same issue;
- Adopting a ‘scattergun’ approach; pursuing a complaint(s) with the Council and at the same time with a department, the Chief Executive, an M.P. Councillor, Auditor, Standards Board, Police, Solicitors or the Local Government Ombudsman;
- Making unnecessarily excessive demands on the time and resources of staff whilst a complaint is being looked into, by for example excessive telephoning or sending emails to numerous council staff, writing lengthy complex letters every few days and expecting immediate responses;
- Submitting repeat complaints after the complaints process has been completed, essentially about the same issues, with additions/variations which the complainant insists make these ‘new’ complaints which should be put through the full complaints procedure;
- Refusing to accept the decision - repeatedly arguing the point and complaining about the decision.
6. Being Reasonable
Raising legitimate queries or criticisms of a Complaints and Representations Procedure as it progresses, for example if agreed timescales are not met, should not in itself lead to someone being regarded as a vexatious or an unreasonably persistent complainant.
Similarly, the fact that a complainant is unhappy with the outcome of a complaint and seeks to challenge it once, or more than once, should not necessarily cause him or her to be labelled vexatious or unreasonably persistent.
The Council will offer the complainant appropriate support, as it would any other customer.
It may be helpful to both parties if the complainant has an advocate. If the complainant feels that they would like an advocate, the Council must consider offering to help find an independent one. If the complainant has specific needs, the Council will offer relevant support. Specialist bodies such as the Royal National Institute for the Blind and Age Concern provide help and advice.
7. The Decision
Before making the decision, some or all of the following steps need to be taken:
- The Council will ensure that the complaint is being, or has been, investigated properly according to the Council’s Complaints and Representations procedure;
- Although each complaint is unique, the Council will deal with the complaint in line with other complaints of a similar nature in order to apply a consistent approach;
- The Council will contact the complainant to:
- Discuss his or her behaviour;
- Explain why this behaviour is causing the Council concern;
- Ask him or her to change this behaviour;
- Explain about the actions that the Council may take if his or her behaviour does not change.
- If the complainant has not already had a meeting about the complaint with a member or members of staff, and provided that the Council knows nothing about the complainant which would make this inadvisable, the Council will consider offering the complainant a meeting with a senior member of staff. Sometimes such meetings can dispel misunderstandings and move matters towards a resolution.
The decision to declare a complainant as unreasonably persistent and/or vexatious will be an exceptional step, and should be made by the Resource Director/ Monitoring Officer/ Head of Service who has not been directly involved in the complaint or with the complainant. They should make a written note of the considerations and decisions.
The complainant should be told in writing:
- Why we believe their behaviour falls into that category;
- What action we are taking;
- The duration of that action;
- How the complainant can challenge the decision if they disagree with it (this should normally include information regarding the Local Government Ombudsman, see Appendix A: Referring Unreasonable and Unreasonably Persistent Complainants to the Local Government Ombudsmen).
The precise nature of the action should be appropriate and proportionate to the nature and frequency of the complainant’s contacts with the Council at that time.
The following is a list of possible options:
- Placing time limits on telephone conversations and personal contacts;
- Restricting the number of telephone calls that will be taken (for example, one call on one specified morning/afternoon of any week);
- Limiting the complainant to one medium of contact (telephone, letter, email etc.) and/or requiring the complainant to communicate only with one named member of staff;
- Requiring any personal contacts to take place in the presence of a witness;
- Refusing to register and process further complaints about the same matter;
- Banning a complainant from one or more Council premises;
- Where a decision on the complaint has been made, informing the complainant that future correspondence will be read and placed on the file but not acknowledged. A designated officer should be identified who will read future correspondence;
- Where a complaint is closed and the complainant persists in communicating about the same issue, it may be decided to terminate contact with that complainant.
These options are not exhaustive and there may be other factors that will be relevant in deciding what might be appropriate action. For instance, any arrangements for limiting a complainant’s contact must take account of the complainant’s individual circumstances, bearing in mind such issues as age, disability, gender, race and religion or belief.
Where the behaviour is so extreme that it threatens the immediate safety and welfare of staff, the Council will consider other options, for example reporting the matter to the police or taking legal action. In such cases, the Council may not give the complainant prior warning of that action.
8. Further Actions
Detailed records of all contacts with unreasonable persistent and vexatious complainants must be kept. Information should only be shared with staff who need this information in order to carry out their role at work.
Personal details about the complainant and about the complaint will be managed and stored appropriately in line with the Data Protection Act and records management principles and procedures.
When unreasonable complainants make complaints about new issues, these should be treated on their merits and decisions should be taken on whether any restrictions that have been applied before are still appropriate and necessary.
Reviews of decisions to restrict a complainant’s contacts or the Council’s responses to them, should be taken by the Complaints Manager/ Resource Director/ Monitoring Officer/ Head of Service.
- LGO Guidance on persistent and unreasonably persistent complainants;
- Information Commissioner’s guidance on vexatious requests;
- Hantsnet - corporate policy on dealing with difficult/vexatious complainant.
Appendix A: Referring Unreasonable and Unreasonably Persistent Complainants to the Local Government Ombudsmen
In some cases, relations with unreasonable complainants while complaints are under investigation and there is little prospect of achieving a satisfactory outcome. In these circumstances there is often little purpose in following through all stages of the Council’s Complaints and Representations Procedure. Where this occurs the Ombudsman may be prepared to consider complaints before the Council’s complaints procedures have been exhausted. This is the case even in respect of statutory complaints procedures.
A complainant who has been designated an unreasonably complainant may make a complaint to the Ombudsman about the way in which he or she has been treated. The Ombudsman in unlikely to be critical of the Council’s action if it can show that its policy has been operated properly and fairly.
In extreme cases the Council may consider the following actions:
- Referring the complaint to the Local Government Ombudsman before the complaints procedure has been exhausted;
- Advising the complainant that it cannot assist further and informing them of their right to approach the Local Government Ombudsman.
The distinction between the two options above is that early referral to the Local Government Ombudsman is a positive action that can only be undertaken in agreement between the KCC and the complainant. This is therefore the less likely option with persistent complainants.
The second option may arise where Kent County Council does not agree with the complainant that the complaints are substantively valid and the two parties disagree on the way forward. This is more likely with an unreasonable persistent complainant.
The authorised manager should not contact the Local Government Ombudsman directly, but indicate to the complainant that he may make this approach. He should also confirm to the complainant that the Council is not responding to the complaint further.
The Local Government Ombudsman is likely to apply the test of reasonableness to the Council’s response in a similar manner to an early referral and will have a range of options open to him.