Latest / HFL Education / The HFL Education Business Services Podcast - When complaints turn vexatious, what can school leaders do?

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The HFL Education Business Services Podcast - When complaints turn vexatious, what can school leaders do? · HFL Education

• 0:02
  Hello, and welcome to the HFL Education Business Services podcast.
• 0:05
  I'm Catherine Loake, the director of business services here at HFL Education.
• 0:09
  We wanted to bring you this series of podcasts, because we recognise that the role of school leadership grows ever wider, ever deeper.
• 0:15
  And finding that time to unpack some of the key issues away from frontline teaching and learning is becoming increasingly challenging.
• 0:21
  So that's where we come in.
• 0:22
  This week I'm really pleased to be joined by Paul Davis, who is our complaints manager at HFL Education.
• 0:27
  So Paul, you get to live and breathe school based complaints for a living I do.
• 0:31
  Yes. Yeah, absolutely.
• 0:32
  Living the dream.
• 0:33
  So we're going to talk vexatious complaints.
• 0:35
  And to me this is a natural part two to the conversation we have with Emma Murray last week about AI based school complaints.
• 0:42
  Emma's the co-CEO of the Claxton Learning Trust and headteacher of Camps Hill Primary School.
• 0:47
  And she gave me some really great insights into how to manage AI based complaints, but some also quite eyebrow raising examples of what she's having to deal with.
• 0:56
  And one example particularly stuck with me, where she was talking about a parent who sent 27 AI based complaints to her in a week that were kind of multi-page, complex, and she was saying before she'd even opened the emails, the next one was coming in and she hadn't had time to read and digest, and she'd sat down with her chair of governors, and they branded the complaint vexatious and managed to kind of take the sting out of the tail.
• 1:21
  But I'm I'm really conscious in talking to trust leaders and heads that the experience out there is really, really mixed.
• 1:26
  And some people are finding they're able to shut these really tricky complaints down and others aren't.
• 1:31
  So let's start from the beginning.
• 1:34
  What is a vexatious complaint, Paul?
• 1:37
  And sort of when can you and can't you brand something vexatious?
• 1:41
  So a vexatious complaint is usually a situation where somebody often has a complaint in progress or has completed the process, but won't accept the outcome.
• 1:51
  But it could also be a situation where they haven't made a complaint for their own reasons, but their conduct is very much of the nature that it can be quite adversarial and confrontational.
• 2:04
  So all intents and purposes, it feels like a complaint, but it may not be going through the formal process.
• 2:09
  It's often where they are trying to achieve outcomes that are not realistic, or in some cases, they're simply not achievable, and they will not accept the responses that they're given, threatening to take the complaint further and higher each time, accusing you of not having responded when you have done.
• 2:27
  It's just that they don't like the response that you've provided.
• 2:30
  And in many cases, it's about always wanting to have the last word.
• 2:34
  Can a person be vexatious, or is it the complaint that can be vexatious?
• 2:38
  So where you've got a really tenacious parent who is complaining about everything?
• 2:44
  Can you kind of deal with them as vexatious parent, or do you have to take each complaint complaint by complaint?
• 2:50
  That's a that's a really interesting question.
• 2:52
  because we we appreciate completely that somebody’s presentation can make them appear very much so that they're vexatious.
• 3:00
  But what we must be very careful not to do is brand the individual vexatious and state this in writing.
• 3:08
  It's the complaint that we must decide whether it is vexatious or not, not the individual.
• 3:14
  And that's because even in very challenging situations with perhaps somebody who has complained multiple times before and is often appears that they are there are persistent thorn in our side, and they're just simply looking on each occasion for something to create a complaint out of.
• 3:32
  Even a very difficult individual like that could, come forward at a point in the future with a genuinely legitimate issue that does require looking into.
• 3:42
  If that individual has simply been branded vexatious and the school then says we’ll not respond to you any further moving forwards, we could miss something genuine that requires urgent attention and a remedy.
• 3:55
  So it's the complaint that you brand vexatious rather than the individual.
• 3:59
  And have you got to have the right wording in your policy to be able to brand a complaint vexatious?
• 4:05
  Or can schools do that regardless of the wording?
• 4:07
  Wording as with all policies is key.
• 4:10
  But what it's clear that you can do in terms of the existing policies and procedures that are in place and the guidance from the DfE, you are permitted to deal with somebody’s conduct whether it's unreasonable behavior more generally or whether specifically it's unreasonable behavior in relation to a vexatious complaint.
• 4:30
  For example, if somebody doesn't actually invoke your complaint procedure, but to all intents and purposes, it appears that they're determined to keep raising concerns and unofficial complaints.
• 4:42
  Sometimes it appears with a intention to try to cause the school maximum disruption and difficulty, you can apply your policy as long as the wording makes it clear we reserve the right as a school or a trust or a federation to take action If your conduct means that the school is unable to function as it otherwise normally would do.
• 5:02
  And so we've got a vexatious complaint.
• 5:05
  We're all agreed it's vexatious and we want to shut it down.
• 5:08
  I'm hearing from a number of school leaders that it's not that simple because it's like whack a mole.
• 5:11
  So you, you kind of shut the complaint down through your school based complaints policy, but suddenly it's popped up with Ofsted, it's popped up with the DfE, it's popped up with the local authorities, popped up with your MP.
• 5:22
  Is it possible, Paul, to lid a complaint and put it to bed?
• 5:25
  End of?
• 5:25
  What I would say on that, there are various steps that you can take to sort of limit the impacts, but ultimately it's not possible to actually stop the person in terms of what they're doing at source.
• 5:38
  So if somebody continues to send in concerns, complaints to make allegations, not just to the school, but also to the organisations that you've just given examples of another one we see frequently, parents are trying to go to teaching regulation authority as well, sometimes after all of those other avenues have been exhausted, they then try and go there.
• 5:58
  Whilst we cannot physically stop the person doing that at source we can have measures in place by following our established policies and procedures for being clear about what the school will or will not do in the event that the person doesn't stop.
• 6:12
  So that even in a situation like this, where a person very much is trying to exert control over, say, the head teacher or the school, more generally, it's about putting the school back in the position of control, ultimately so that the school can focus on teaching and learning whilst trying to have some kind of constructive dialog with this person in order to try to bring the matter to a close.
• 6:34
  I guess one of the things I've observed, particularly since you've come to work at HFL and you came to work with us because school complaints were getting more complex, and school leaders were saying to us, you know, this is something we need to help with.
• 6:46
  And I guess I'm seeing more and more legal input into complaints as well, where parents don't get the outcome they want, they engage a lawyer.
• 6:53
  And I know rightly, a lot of schools are concerned about, you know, when they might be able to shut a vexatious complaint down when they can’t Is there a kind of an optimum point at which to brand something vexatious?
• 7:04
  Because I'm conscious that if you do it really early and essentially to try and we've all seen these complaints that that grow arms and legs and get out of control and keep leaders awake at night.
• 7:14
  So if you go really early and shut it down, is there some kind of legal comeback that you were sort of premature in branding something as vexatious?
• 7:21
  There's two key points that that raises there in terms of the answer.
• 7:25
  Yes it is possible to brand a complaint vexatious too early and that's important because if you brand it vexatious too early, the person is highly likely to then come straight back and say that they believe they've been treated unfairly.
• 7:38
  They could even go on to make allegations that they feel that they've been discriminated against, and that the school is trying to shut them down and silence them when they have a genuine issue they're trying to raise The other issue is that by shutting it down too early, it sometimes could leave a school without sufficient evidence that the person's conduct is sort of unnecessarily persistent and sometimes potentially harassing in nature.
• 8:04
  Any decisions that we take in relation to behavior of this nature need to be based in fact and upon evidence.
• 8:11
  So what has the person been doing that is unreasonable?
• 8:14
  How long have they been doing it for?
• 8:16
  Who have they been doing it to?
• 8:18
  And key to this, what has been the outcome in terms of the impact on staff and governor wellbeing?
• 8:23
  The time taken up when they would have and could have, should have been doing other tasks.
• 8:27
  Instead, they've been caught up in having to deal with this person's unreasonable volume of correspondence.
• 8:32
  So yes, it's important not to brand it vexatious too early because actually you need to firstly give the person a chance to articulate themselves to see if there's a genuine point to what they're saying, as well as for the school to take stock of the situation and decide how it's going to respond.
• 8:49
  Telling somebody it's vexatious almost from the beginning is not going to resolve the matter.
• 8:55
  It's actually more likely to make the person pursue it down those other avenues that we've talked about, which in turn incurs more time, stress and effort for the school.
• 9:05
  It’s really tricky, isn't it's neither an art nor a science.
• 9:08
  So it's presumably about applying principles of common sense, really you know, you've got to let things play out far enough to be able to have that, that evidence.
• 9:16
  it's a personal opinion about whether something is vexatious, therefore, there's no acid test that that is now become vexatious.
• 9:23
  It’s always clearer if somebody has made a complaint that qualifies for acceptance as a formal complaint, because it's not always a foregone conclusion that every single complaint you have submitted the school can accept.
• 9:36
  For example, if someone's trying to complain about their child being suspended or being the subject of a permanent exclusion, there are certain complaints that don't qualify.
• 9:45
  But where a complaint does qualify for acceptance and it's gone all through the stages and the person is continuing to be very vociferous even after that complaints process in their criticisms of the school trying to gain traction by going to the the other outlets that we've talked if a person is behaving in that way, almost to the point that it feels that they're even more dissatisfied and being even more unreasonable than they were at the start of the it's easier in circumstances like that to determine that the complaint is now vexatious.
• 10:16
  The harder cases are where the complaints procedure potentially hasn't yet concluded, or the person deliberately has chosen not to invoke it.
• 10:27
  You can still take action through your policy and procedure, but you need to be very careful about the grounds on which you're taking action.
• 10:34
  There is a policy and procedure that's long been in place that lots of schools may be familiar the HCC version for maintained schools, it's in relation to unreasonable behavior, managing that and vexatious complaints.
• 10:47
  It's otherwise known as appendix 3 by lots of schools.
• 10:50
  Within that, it states clearly at the end that the school reserves the right to invoke that policy in various situations, not necessarily only arising from formal complaints so it gives the school the option of taking action against someone's behavior if actually there isn't a live complaint in process or the process hasn't recently been concluded.
• 11:11
  As a school, I would be nervous about making that that call potentially.
• 11:15
  So it's great to know we've got people like you, Paul that are kind of in the system, that can give that advice.
• 11:20
  One of the things I’ve been hearing more and more about is schools putting communication restrictions on parents, particularly in the light of really difficult complaints that have been through the whole process.
• 11:30
  It might have been branded as vexatious, ultimately, and to try again, to give everyone the sort of space and time back that they need using a policy dictated to parents when they can contact them, who they can contact and how they can contact them.
• 11:43
  And that strikes me as a really effective short term respite, effectively from that difficult issue and parent.
• 11:50
  But one of the great things about your job is you see the impact of complaints over time and I know you often have tracked these issues over weeks, months, sometimes even years as parents and families move through the education system.
• 12:05
  How enforceable do you think those kind of communication restrictions are?
• 12:09
  And ultimately, are they worth it?
• 12:11
  Do you think that they have a benefit short term?
• 12:13
  But what is the kind of the long term impact of using quite a blunt tool like that?
• 12:17
  The short answer is absolutely yes, they are enforceable.
• 12:20
  But again, it’s one of those situations where the devil is in the detail.
• 12:24
  So it's really important when you're taking action firstly to provide some short term relief for staff and governors to know that actually we’re no longer having to keep looking over our shoulders, looking in our inboxes for yet another email from this person, we know we don't have to respond straight away because some kind of restriction’s now in place.
• 12:42
  We have to be clear why we're putting restrictions in place/ Going back to the person with clear examples of their unreasonable behavior, link this to the effect that it's had on staff and governor wellbeing, and also the time it's taken up, that in turn, has perhaps taken away from teaching and learning on occasion because of the sheer amount of effort that it's taken to respond to this volume of complaints and inquiries.
• 13:07
  We then need to move on to set out, exactly what measures are being put in place, we need to reference those measures as per they’re set out in the policy, but then be clear how those measures are going to work in practice.
• 13:19
  So who is going to oversee the implementation of those measures, and how long will they be in place for.
• 13:25
  And that's key because ultimately the school needs to agree and set up a time period at the end of which they will review those measures.
• 13:34
  You cannot simply say we're going to put these measures in place indefinitely for the remainder of your your child's time at our school, because that could be years away.
• 13:43
  It's important to periodically review the measures in place, because on some occasions, the measures are enough of a jolt to the person to realise, actually, this situation’s gone too far.
• 13:53
  I didn't mean for it to get out of hand like this.
• 13:56
  I was angry, I was upset I can now see that things have gone too far and perhaps we need a reset.
• 14:02
  So sometimes the measures have that impact of making somebody realise I need to take a step back from this, because it's not a healthy situation for the complainant, or the governors or even the children who are, let's remember, who are supposed to be at the center of Lots of these situations, often without meaning to they do end up resulting in the the child's best interest being overlooked because it's become much more of almost like a power dynamic where the complainant is trying to exert control over the school in order to achieve outcomes that are not reasonable or achievable.
• 14:38
  So be clear that you're going to review those measures over time, because if the person's behavior has improved, that's ideally what we would hope to happen from putting those measures in place.
• 14:47
  The measures could then be reviewed and perhaps relaxed or revoked.
• 14:51
  If the person's behavior, however, remains the same or gets worse, then the school could reserve the right to keep the measures in place for longer, and or to increase the severity of the measures that are in place.
• 15:03
  We recommend taking an approach where you put a small number of measures in place first explain how they will work in practical terms and only take more severe measures if the person's behavior stays the same or worsens.
• 15:18
  It's really interesting, so I've been reflecting a lot this week because we've got a company conference coming up and thinking about how back office services and systems in schools are changing and come to the conclusion that we've moved really from the complicated 5/6 years ago, perhaps pre-COVID, to the complex post-Covid.
• 15:36
  And it feels now that you can't put things back together in the same way.
• 15:40
  And it strikes me that complaints is one of those areas that's not necessarily complicated, it's complex.
• 15:46
  And actually being able to talk to other professionals around you and just check some of that thinking sometimes is really helpful and obviously you've got an independent service that you run, which is great, but is it always necessary to bring in the lawyers as well to make checks and balances, or because I'm conscious of the price tag that comes with Paul, because this sounds to be really complex, or is it possible for schools to use their own judgment, using the policies that they've got and to feel comfortable that they effectively provide the necessary safeguards for them to go about their business and to make clear decisions around school based complaints when they're vexatious.
• 16:23
  If the school ultimately decides it would like or it needs legal input from a legal professional, that's a decision that the school is entitled to take.
• 16:32
  But recognising the extreme pressures on school budgets that there are for some schools, that's not even going to be a possibility.
• 16:39
  on other occasions, an opinion from a legal professional might be preferable, the situation may not be as complex as it seems, and therefore the school may well not need to go to the expense of seeking legal input.
• 16:51
  It's just that the presenting behavior of the person is what's difficult about the issue.
• 16:56
  The complaint itself is not as complex as it firstly might have appeared.
• 17:01
  A lot of it is about unpicking it we would be able to have a discussion with the school facing a difficulty like that and indeed we do a number of times during the year, but also within schools, heads can discuss complaints with colleagues and governors in order to try to unpick them and understand well actually, is there a point to what this person is saying?
• 17:19
  Are the outcomes something that we could either agree to or perhaps meet them in the middle in some way to show that we are listening.
• 17:26
  Some complaints are made and they're very genuine that something's gone wrong, not necessarily intentionally, but something has gone wrong and needs to be put right.
• 17:34
  We have to remember as well that the whole point of a complaints process, it's not about apportioning blame to any particular individual or group of individuals.
• 17:43
  It's about identifying where we could have done something better, or perhaps, if not better, just perhaps differently.
• 17:50
  Apologising for that and explaining the steps that we're going to take or have already taken in order to this situation from recurring.
• 17:57
  I would say, yes, you've got the option of seeking legal advice, but that would be as almost as a as a last resort.
• 18:06
  Use the other steps and the other tools that are at your disposal first, for example, offer them access to your complaints procedure.
• 18:14
  Somebody needs to be able to make a complaint without prejudice.
• 18:18
  You need then to have the chance to review the complaint, investigate it, and respond to the person through that process that can be carried for no additional money it may actually resolve the matter.
• 18:27
  There's access to HFL services for slightly more complex issues or where they've become protracted over time.
• 18:34
  And there's perhaps so many people have become involved at school level that it leaves very few staff or governors free to deal with the complaint impartially.
• 18:43
  That's what we can help with but always use the tools at your disposal and exhaust all reasonable steps before going down the legal route, would be my ultimate advice.
• 18:53
  That's really sage advice Paul.
• 18:55
  In closing, a bit of a quickfire question, what's the most common procedural error you see with schools when seeking to shut down a vexatious complaint?
• 19:04
  There's a couple.
• 19:05
  The first one is actually not following your policy all schools need a policy for doing that.
• 19:10
  You have one in place, so follow it.
• 19:12
  Human nature dictates that nobody's really going to be like to be told that their complaint is vexatious and that their behavior is unreasonable.
• 19:20
  Lots of people indeed try and argue that their behavior isn't unreasonable and continue to behave unreasonably while they're doing that.
• 19:27
  So it's one of those situations it can almost become like a hamster in a wheel.
• 19:32
  So it's really important firstly, to always follow your policy make evidence based decisions, in fact on what's happened, is that what should have happened and if not, what should have happened instead?
• 19:44
  What do we need to do to put it right?
• 19:46
  If we have taken steps to put it right, to apologise and to clarify any misinformation and the person is still behaving unreasonably, that's when we would look to invoke our policy, and we would need to follow the set of steps outlined in there, on an ascending approach of seriousness.
• 20:03
  The other issue as well is to avoid simply saying to somebody that we're going to shut you down and we're going to ignore you.
• 20:10
  You must never be seen to say that.
• 20:12
  And in my own experience, from working in complaints for a number of years that's not an approach the DfE would welcome you taking.
• 20:19
  They would take a dim view of that on the basis that actually, you still need to read incoming correspondence and decide what to do with it.
• 20:27
  It may be that if you've been very clear by that point that we have exhausted all forms of reasonable dialog about these matters, it's clear that we continue to disagree on these matters, but we will simply have to agree to disagree.
• 20:41
  The school’s been clear in its position.
• 20:43
  You've been clear in yours.
• 20:45
  We're sorry to hear that you feel that way.
• 20:47
  However, the school has nothing further to add.
• 20:49
  You still need to continue to read any incoming correspondence to check that the person isn't raising a new issue that requires attention, but otherwise we would read it and file it.
• 20:59
  We wouldn't necessarily acknowledge and respond to it.
• 21:02
  So I think as long as you do those two things, continuing to read the information that's submitted to you in case anything different or new is raised and following your policy, then you can't go far wrong.
• 21:12
  Paul, that has been really, really helpful and I'm sure provides a lot of clarity to to school leaders and they're going to find this podcast really, really valuable.
• 21:19
  So I hope you've enjoyed today's episode.
• 21:22
  If you did, please like and subscribe and we will see you next week.
• 21:25
  Thank you very much.