Vexatious What the public sector calls a troll?

On the web, people who are argumentative, rude, or even threatening are called trolls. People block them and shun them from contact. In extreme cases, they can be banned from the social media platforms. The same process occurs in the world of public sector customer service. Instead of being declared a troll, you are declared vexatious. When you are declared vexatious, you lose a number of rights. In particular, your right to complain is reduced and your right to contact others about your complaint is reduced.

Doing more with less means no one will suffer fools gladly?

In the public sector, customer service is changing. Over the past few years, the resolve to deal with “problem” customers has increased. In the past, the organisations might have suffered in relative silence. As they lacked the customer service experience, resources, or willingness to deal with these types of customers, they would have put up with them. They would have accepted them as the cost of doing business or simply refuse to deal with them until compelled to by law. Unless they became abusive or threatening, it was difficult for an organisation to turn them away.

Vexatious Litigant is a related issue.

The legal term “vexatious litigant” has existed for many years.[1] It describes a person who makes frivolous or malicious legal claims that do not pursue a legal issue beyond the ability to vex the other party by forcing them to endure a legal claim. The court can declare a litigant as vexatious and future related claims can be rejected or the applicant must seek permission from the court to apply.[2] What is new, though, is that this term and idea vexatious complainant has arrived in customer services. In the past, public sector organisations could not use this approach because it dealt with a particular area, the law, and it was about an application to the court. By contrast, public sector has a legal obligation to provide services and cannot refuse to deal with the applicant. Thus, one approach was to ignore the complainant. For many this is what happened.

The FOIA changed the balance but only for a time.

In 2000 the Freedom of Information Act gave the individual the power to compel an organisation to respond to requests for recorded information. Although it was not the same as dealing with complaints, it did force the public sector organisation to respond to written requests for information. Organisations had to accept that they would have to deal with applicants who had become unreasonable, persistent, and problematic. For the first seven years of the Act’s life, organisations put up with these type of applicants as they believed the law limited their options. In 2011, the First Tier Tribunal overturned the decision to consider an applicant vexatious. The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 20 September 2011, following the hearing on 24 August 2011 under file reference EA/2011/0079. This was appealed by the ICO on behalf of the Devon County Council. The appeal was successful and the Upper Tier Tribunal Information Rights, handed down a ruling supporting the ICO’s appeal. The decision also set ou how “vexatious” requests could be understood.[3] If an organisation decided that the requests fit these categories, they could refuse to respond to it. The exemption also allows the organisation to refuse to accept an applicant’s request on the topic without needing to tell them.[4] Although an applicant can appeal to the ICO, however, success is unlikely.[5] If they appeal to the Upper Tier Tribunal, the stage after the ICO, successful appeals are rare. However, the FOIA ruling is important for another reason. It has provided the public sector a way to class complainants, as it did with requests, as vexatious. I would argue the ruling has changed the way public sector organisations provide customer service and has shifted the balance from the individual to the organisation.

Protect the staff and resources, but at what price?

The public sector in the UK, which has to do the same or more with a reduced budget, has sought way to limit those customers that take up the most time. These customers were often called “problem customers” or “serial complainers” who, for any number of reasons, take up the organisation’s time and resources. They are considered persistent, prolific, or vexatious applicants and organisations, and their customer services, need a way to deal with them. The preferred approach appears to be to declare them vexatious. Once declared vexatious, the organisation can refuse them services, reduce them or manage them in a specific way.[6]

On the surface, the new rules appear to be justified. Complaints and requests can cost a public sector organisation time and money. If the applicant has a grudge or is unreasonable, they can create problems for the organisation. The public purse needs to be protected and staff need to be protected from applicants who have a grudge, who make persistent unreasonable requests, and take up a larger amount of time than other applicants. To do this, organisations have created policies and procedures that help them identify and deal with vexatious complaints.

When we look beneath the surface, the policies give the organisation increased powers over the individual. In one light they can appear potentially undemocratic if not a violation of human rights. In another light, they can appear vindictive as the organisation can use it as a first resort or as a threat to deter and prevent complaints. If you are a vexatious complainant you can lose various rights. Here are the various rights than can be taken away.

The right to free expression: the right to complain.

Some organisations have policies that state if the complaint complains to other people or to another organisations about their complaint or at the same time as their complaint, they can be declared vexatious. Yet, under the Human Rights Act, every individual is allowed the right of free expression (Article 10 Right to free expression and information) except, it would appear, if you have a complaint. Then you lose that right. If you write to your MP about the organisation, they can take that as vexatious behaviour and refuse to deal with you.

Adopting a ‘scattergun’ approach: pursuing a complaint or complaints with the authority and, at the same time, with a Member of Parliament/ a Councillor/ the authority’s independent auditor/ the Standards Board/ local police/ solicitors/ the Ombudsman.

We do not want to be held to account in a way we do not manage

The vexatious complaint procedures will declare your complaint vexatious if you record any meeting or telephone call without informing them first. As I wrote here, people are turning to social media to hold organisations to account. Many people no longer trust the organisations, and their staff, to keep their word. When the trust breaks down, the complainants believe they can only get a fair hearing if they record the meetings or telephone calls. The Data Protection Act allows a person to record a telephone call or a meeting without consent if it is for their own personal use.[7] Once the organisation finds out that you have recorded the call, according to their policy they are free to declare you vexatious and refuse to deal with you except in writing, if at all.

The following, non-exhaustive list, are examples of the actions and behaviours of unreasonable and unreasonably persistent complainants which may cause the policy to be invoked

h) Electronically recording meetings and conversations without the prior knowledge and consent of the other persons involved

In many cases, organisations record or monitor the incoming telephone calls to protect their staff and to ensure customer service standards are being met. Yet, in some cases organisation can work on the principle that if it is not written down it did not happen. Such an approach, while well intentioned, puts the complainant at a disadvantage because the employee not the customer takes the notes. If the issue is contentious, the organisation might say “well our employee wrote it down that way and if it wasn’t written down it did not happen. What evidence do you have that it did happen as you say?”

Raise your voice and you’re on the Potentially Violent Persons Register (PVPR)

If the complainant use aggressive language over the telephone or in person the organisation can put you on their potentially violent persons register (PVPR). Thus, they go from having complained to their MP about the complaint process to being classed as a vexatious complainant. If they express their frustration in less than civil terms, they can be put on the PVPR and declared vexatious.

So whatever you do, try to avoid complaining. If you do complain, make sure you are polite and don’t complain to anyone else at the organisation. Always remember that you cannot contact your MP or anyone else about your complaint until the organisation has decided your complaint. If you fail to follow these rules, you will be declared vexatious. If you make an FOI request about it, you can be declared vexatious.

The organisations now have increased powers to protect themselves and manage the individual. Who is speaking up for the individual?

[1] Here is a short history of the term and the legislation around it. http://www.infotextmanuscripts.org/vexatiouslitigant/vex_lit_history.html (Accessed 22 February 2015)

[2] Here is a list of vexatious litigants held by the UK government. https://www.gov.uk/vexatious-litigants (Accessed 22 February 2015) This applies to England and Wales

[3] In Information Commissioner v s Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013) , Judge Wikeley recognised that the Upper Tribunal in Wise v The Information Commissioner GIA/1871/2011) had identified proportionality as the common theme underpinning section 14(1)and he made particular reference to its comment that ‘Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it.’

[4] Here is the guidance from ICO on dealing with requests under section 14 https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.pdf (accessed 22 February 2015)

[5] If we examine the ICO’s database on decision notices, where they rule on whether the organisation applied an exemption or refused information correctly, we see the trend. In the last year, as defined by the ICO data base, there were 131 complaints on s.14. Of these 32 were upheld and 110 were refused. This means that of a 131 cases, the applicant succeeded 32 times while the organisation succeeded in 110 cases. The numbers do not match because there can be partial or overlapping complaints. The next highest, with a public interest test, was s.43 (Commercial Interest). Here there were 47 cases last year. 18 were upheld (siding with applicant) and 28 were refused (siding with the organisation). The highest use exemption was s40 (Personal Information). As there is no public interest test for this category it is an outlier. However, there were 230 requests 52 were upheld (for the applicant) and 189 were against)

[6] The policies are curiously consistent across many organisations and seem to have been copied or shared to save time. I did an internet search with this phrase and found it was the same in a dozen policies. “Electronically recording meetings and conversations without the prior knowledge and

consent of the other persons involved.”

[7] Under the Data Protection Act 1998 (DPA), Section 36, there is an exemption which states that “personal data are exempt from the Data Protection Principles and the provisions of Part II (individuals’ rights) and Part III (notification) of the Act where they are processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes).” This means that an individual can carry out covert recordings without being in breach of the DPA as long as the information is for their own personal and domestic use.

http://www.computertel.co.uk/wp-content/uploads/2013/05/Call-Recording-Law-in-the-UK-updated-2013.pdf

Tribunals and Courts may not like the covert recordings by individuals. However, they will accept that justice needs to be served and any evidence that proves a case needs to be considered. Following a number of tribunal cases that allowed for it to be submitted.

http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/04/11/employers-may-need-to-record-disciplinary-meetings.aspx (Accessed 22 February 2015) See also The Tribunal was clearly uneasy at admitting the evidence, but could not avoid it on the facts.

http://www.brodies.com/node/2011 (Accessed 22 February 2015)

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
This entry was posted in bureaucracy, compliance, coruption, Uncategorized and tagged , , , , , . Bookmark the permalink.

6 Responses to Vexatious What the public sector calls a troll?

  1. Lawrence

    Do you accept that there are some individuals who conduct themselves in such a way that they cause unnecessary and costly disruption to public authorities? If you do accept that, then do you accept that those authorities have the power, and the discretion (maybe even the obligation, bearing mind the effect on resources) to take steps to lessen that disruption? If you do accept that, then isn’t it sensible to refer to guidance pointing to when and in what circumstances the discretion might be exercised?

    The reason so many authorities’ guidance looks the same is because they are drawing on the very helpful guidance from the Local Government Ombudsman http://www.lgo.org.uk/publications/advice-and-guidance/unreasonable-complainants/
    And the examples you give in your piece are just examples of behaviour which *might* (not will) lead to steps being taken to manage a person’s contact with an authority in the most appropriate manner. You say “if you fail to follow these rules you *will* be declared vexatious- do you have any evidence of this? Over a number of years working with local authority complaints I can count on the fingers of one hand the number of people we have had to take a different approach with because of their unreasonable behaviour. And FOIA has made no discernable difference.

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    • Jon,
      Thanks for the comment. Yes, I agree that organisations need to protect their resources and their staff. They need policies and procedures to deal with those people and events that can threaten their resources and staff. However, that is not the issue. As I explained in my post, these points were agreed.
      “On the surface, the new rules appear to be justified. Complaints and requests can cost a public sector organisation time and money. If the applicant has a grudge or is unreasonable, they can create problems for the organisation. The public purse needs to be protected and staff need to be protected from applicants who have a grudge, who make persistent unreasonable requests, and take up a larger amount of time than other applicants. To do this, organisations have created policies and procedures that help them identify and deal with vexatious complaints.”

      I do not think the organisations followed the Ombudsman’s guidance, even though it is similar, for several reasons. First, the term vexatious is not used by the Ombudsman. I noticed the title was interesting and revealing. Guidance note on managing unreasonable complainant behaviour. The focus here is on reasonable or unreasonable behaviour. Unlike Vexatious, which is subjective, reasonable or unreasonable behaviour has a standard: reason. A third party can consider the behaviour or the request or the intent of each party and judge it by the standard of reason. By contrast, vexatious has to deal with intent and the perception of those who receive the complaint. Immediately, we note that this is subjective and it gives the object of the complaint an incentive, especially if they do not want to deal with the complaint for their own reasons (embarrassment, fraud, service failure) to apply vexatious. Once an applicant is deemed vexatious, they then would appear unreasonable and the balance of probabilities is stacked against them. However, that moves us away from the issue.

      Let’s look at how vexatious is defined. Causing or tending to cause annoyance, frustration, or worry It is an adjective so it has to describe something. The complaint, the request, the litigant, or even the person. Your example of the Ombudsman’s guidance is interesting because it is focused on the complainant and their behaviour. The person’s behaviour cannot be seperated from them. It is about managing the person not the complaint or its unreasonableness. Therein, we see the additional problem. It is focused on the individual as an individual. How does someone escape the label once applied? They must conform or face the label, the reduced service or constrained service, in the future. Now, the staff know that they have the upper hand because on the balance of probabilities, they (not the person previously demonstrating vexatious behaviour) will be beleived.

      Leaving aside these points, you appear to have avoided the central point of my blog which is that the balance betweeen the organisation and the individual has shifted to the organisation. The two areas where the policies are consistent are not mentioned in the Ombudsman’s policy.
      The policy does not mention contacting others such as MPs. While it does mention a scatergun approach, it does not mention the MP. What is curious is how the other authorities have tailored the response to specifically mention the MP. (The NHS vexatious policies do not seem to mention this). Yet, local authorities seem to respond to MPs with alacrity. Perhaps if they didnt, then complainants would not appeal to the MPs. In that sense, the response to the MP creates a perverse incentive to use the MP as they get a response further enhancing their value in the eyes of a complainant. However that is a topic for another blog.

      The second issue, which is common to the NHS policies, but is not in the Ombudsman policy is the prohibition on recording conversations or telephone calls. This NHS organisation states that recording meetings is behavior that is defined as vexatious. http://www.royalberkshire.nhs.uk/get-in-touch/complaints-policy-2014.htm With your background in customer service, perhaps you could suggest why the organisations all have this common element? As I pointed out, the two elements mentioned above (contacting others about a complaint and recording meetings or telephone calls are both legal. In particular, the right to contact others (the right to free expression is enshrined in the Human Rights Act and the European Convention on Human Rights.) Are you suggesting that all customers must forgo their human rights when they make a complaint?

      The individual is at a disadvantage when dealing with an organisation. They do not have a legal department. They do not have a customer service team. They have limited funds. They rely on the organisation. I have yet to hear of an MP being declared vexatious. However, an FOI request from the press to the Metropolitan police was declared vexatious and the outcry was very loud indeed. By contrast, the individual who is likely to be declared vexatious will not have that voice or access to others to leverage their case. They will lack the resources to prepare a consistent, coherent, and cogent complaint. The organisation will have the resources to do that and to appear reasonable in all behaviour, which will give it the benefit of the balance of probabilities. Moreover, the individual depend on the organisation and they are likely to fear retribution or reprisals for their complaints.

      Take for example, this finding from the Scottish Information Commissioner’s survey their initial survey from 2009 revealed that voluntary sector 49% did not use the FOI requests for fear of reprisals against their funding. They feared that if they asked for information their funds might be cut. In depth research followed and subsequent surveys confirmed this fear. The in depth research confirmed that the more the voluntary sector organisation depended on the public authority the less likely it was to make a request. They were deterred from exercising their right and they were an organisation, with resources and contacts, not a vulnerable individual.
      The new research, which involved in-depth interviews with 50 voluntary sector staff members from across Scotland, also found that the closer an organisation’s relationship with a public authority, the less likely it will be to make use of the FOI “right to information”. The researchers discovered that FOI-use was more likely amongst smaller organisations with a more independent status, and “grassroots” campaigners.
      http://www.itspublicknowledge.info/home/News/20120706.aspx

      In the NHS, with a statutory complaints procedure, patients are fearful of making a complaint because they are concerned it will affect their care. see for example http://www.dailymail.co.uk/news/article-2819636/Patients-fear-victimised-complain-NHS-raised-concerns-confronted-hostile-staff.html Now I am sure that there will be some people who will dismiss this as Mail hyperbole. If so, consider this government report that says the same thing a few years earlier. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255615/NHS_complaints_accessible.pdf This echoes previous reports that have a common theme of patients fearing to complain because of concerns about future care. Moreover, the NHS have the vexatious complaints policy so they can deal effectively and robustly with “serial complainers” or “problem customers”.

      The vulnerable clients and customer will be at a disadvantage when they deal with an organistion. Their only form of redress is a complaint. Yet, they may fear to make too much of their situation as it may lead to consequences. As a result, I do believe the balance is shifting against the individual. I would be curious to know if your authority consulted the public when it developed its vexatious complaints policy.
      The FOIA change to emphasize vexatious requests further enhances the organisation and weakens the individual. A casual glance at the ICO’s statistics show that s.14 was appealed to ICO 131 times (as there are more uses than appeals to the ICO) the number is likely to be higher. In 30 or so cases, the ICO sided with the applicant. In the remaining 100 or so, it sided with the organisation. The ratio is 3 to 1 against the applicant. The nearest exemption is not as prolifically against the applicant.

      As the individual seems to have such power against an organisation, I would be grateful to hear from you on how we can better protect the organisation from them.

      Best,

      Lawrence

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      • You say I have avoided the central point of your post which is that “the balance betweeen the organisation and the individual has shifted to the organisation”. I didn’t avoid it (I didn’t spot that was the central point) but I think it’s very wrong. The balance has always been towards the organisation: before the rise of judicial review in the post-war years decisons of public authorities were beyond challenge; before the introduction of public service ombudsmen in the late 1960s there was no effective mechanism to complain about public authorities; before the 1984 Data Protection Act there was no way of knowing whether one’s personal data was being processed nor to get hold of it; before the Human Rights Act 1998 one had no direct way to enforce one’s fundamental rights other than by an application to the ECtHR; before FOIA 2000 and EIR 2004 there was no explicit right of access to public documents. To say that the very small number of instances where complaints and complainants are being termed vexatious is a shift the other way is hyperbolic at best. The balance will always lie with the organisation – how could it realistically be any other way? – but the last 70 years or so have seen an extraordinary growth in the powers of individuals to challenge public authorities.

        I think it’s eminently reasonable to suggest that the making of surreptitious recordings is *one* of the types of behaviour which *may* result in steps being taken (which is what the NHS Trust policy you link to actually says). Don’t you? Id say that the reason this is a common element to many policies is because it’s the sort of behaviour which evinces a lack of trust and mutual respect. This is not to say that there might not be exceptional circumstances which would justify it.

        “Are you suggesting that all customers must forgo their human rights when they make a complaint?” No I’m not, and you know I’m not. I avoided your point about Article 10 in the post because, with respect, I thought it was silly. It does not begin to engage let alone infringe one’s right to freedom of expression to say that adopting a scattergun approach to making a complaint *might* lead to certain steps being taken to manage the impact of that behaviour on the organisation. In what way is this actually preventing to exercise of expression? One is still totally free to exercise it. Furthermore, as you’ll be aware, the right is qualified: since it carries “duties and responsibilities” it is subject to limitations etc to protect eg the rights of others.

        And as for your ICO stats, I don’t really understand the point – the ICO often agrees with authorities that FOIA requests have been vexatious? Are you suggesting all or some of the decisions are wrong? Are you suggesting the decision of the Upper Tribunal in Dransfield was wrong? If so, fine (although I certainly disagree on the latter point, and suspect I would on the former) but if you’re suggesting the stats alone show a problem I think that suggestion lacks a rational basis.

        Cheers,
        Jon

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      • Jon
        Thanks for the response. Sorry for the delay in responding. The balance between the organization and the individual has not shifted dramatically. Yes, more legislation addresses the balance. However, for each new right for the individual there is a concomitant power to the organization or the state. The balance can be seen as what the state will allow the individual rather than what the individual concedes to the state. In many ways, the system is one in which the individual serves the organization.
        One might suggest, if one were looking at it in a different way, that the state, in this case the monarchy, has ensured that parliament and the establishment have conceded rights and benefits as necessary to placate the public. The goal is to ensure the overall public order, which benefits the crown, is sustained. However, that moves us somewhat away from the issue of vexatious.
        You suggest that a person making a recording is acting a vexatious manner. On what basis do you suggest this is the case? The individual does not trust the organization is usually, but no always the reason. The individual is allowed to distrust the organization, as it is their right. The organization, cannot by law, distrust the individual as that would be to discriminate against them. As for mutual respect, the organization is supposed to be there for the individual not the other way around. The respect for individuals might exist but even that is dubious, as many will use the power of the organization to reveal the depths of their character, rarely for the better.
        You will note that organizations will record all calls and contacts for “training” purpose. So does the organization trust their staff or the customers? The balance of power sits firmly with the organization than with the individual. Well beyond what is necessary for the organization to function or to ensure it functions properly. The article 10 is saying that the individual must curtain their right to communication. Any time they engage the organization and wish to exercise their right to expression, they face the consequence that they will be declared vexatious. Article 10 is not qualified by the threat of a “scattergun” approach as if this presents a direct threat to the rights of others.
        The ICO statistics are there to show that the ICO agrees with the institution a disproportionate amount. At present, it is a 3 to 1 ratio against the individual.
        Best,

        Lawrence

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  2. I did a lengthy reply a few days ago to your reply but it’s not appeared. So, briefly:

    “you appear to have avoided the central point of my blog which is that the balance betweeen the organisation and the individual has shifted to the organisation”

    I didn’t actively avoid that, but if it’s the central point I think it is, with respect, largely meaningless. The balance in the relationship of “organisation” with individual has always favoured the former, but the last seventy years or so have seen inter alia the development of judicial review, the introduction of public sector ombudsmen, data protection rights, human rights and freedom of information rights. The individual now is in a much better place to challenge the state and its manifestations than her equivalent was in 1945 – against this background the current arguments about FOIA vexatiousness pale into almost total insignificance.

    “This NHS organisation states that recording meetings is behavior that is defined as vexatious”

    No, it doesn’t, it says that it is one of the criteria under which complainants *may* be deemed to be unreasonably persistent complainants.

    “Are you suggesting that all customers must forgo their human rights when they make a complaint?”

    Of course I’m not, and it’s specious reasoning to bring human rights into it. Taking steps to manage a complainant does not mean that their Article 10 rights are infringed – their freedom of expression remains. They are not restrained from writing to their MP. They are not restrained from contacting the organisation.

    It is manifestly the case that some individuals place significant strain on public resources because of unreasonable and unreasonably persistent behaviour or because of vexatious requests (as defined in Dransfield). I’m not sure what you are proposing – if you are proposing anything – but I have seen no evidence that over-application of s14(1) is any sort of societal problem.

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  3. EJ says:

    On the Government list of vexatious litigants it does say “in cases without any merit” so unless there is an arbitrary decision made on what has merit, this in theory should protect the complainant/litigant.

    Like

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