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. 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. 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. 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. Although an applicant can appeal to the ICO, however, success is unlikely. 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.
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. 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.
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?
 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)
 In Information Commissioner v s Devon County Council & Dransfield  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.’
 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)
 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)
 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.”
 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.
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)