Decision : Upheld
Decision date : 18 Feb 2019
The Ombudsman's final decision:
Summary: The Council failed to investigate complaints of anti-social behaviour and noise nuisance. It failed properly to assess the vulnerability of the victims. Because of this it is not possible to know if the Council could have taken any action against the perpetrators. The Council failed to support the victims. The Council will apologise and pay the complainant £300. In future it will consider all evidence offered by a victim and keep the vulnerability of a victim under review.
- The complainant, whom I will call Mrs X, complains the Council failed to take action to deal with anti-social behaviour and failed to provide her with advice and support.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- If we are satisfied with a council’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
- I considered the complaint made by Mrs X and discussed it with her. I asked the Council for information and considered this.
- I have exercised discretion to look at events from January 2015 as Mrs X consistently raised her concerns with the Council.
- Mrs X and the Council had the opportunity to comment on a draft version of my decision. I considered their comments before I make a final decision.
What I found
- Section 2 of the Act defines anti-social behaviour as
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person
(b) conduct that could cause nuisance or annoyance to a person in their home, or
(c) conduct that could cause housing related nuisance or annoyance to any person.
- The Act replaced the ASBO (introduced by the Crime and Disorder Act 1998) with six new powers:
- civil injunction (a court ordered injunction for up to 12 months.)
- criminal behaviour order (an order made after conviction for a criminal offence.)
- Community Protection Notice.
- Public Spaces Protection Order.
- closure power.
- dispersal power.
- Councils and the police can issue a Community Protection Notice (CPN) to prevent unreasonable anti-social behaviour which has a detrimental effect on the community's quality of life. CPNs require the perpetrator to stop the behaviour and can require the person to take reasonable steps to stop it happening again. Failure to comply is an offence and may result in a fine or a Fixed Penalty Notice.
- The Act introduced a community trigger. This allows a member of the community, who does not think the Council has done enough, to ask the Council to carry out a case review. Each area has a locally defined threshold for the trigger. In East Yorkshire the threshold is: -
- the affected person must have reported three separate incidents about the same problem in the last six months and had an inadequate response of felt ignored. Or,
- At least five people have made reports about the same problem in the last six months.
- The Council must tell the complainant of the outcome of the case review and any recommendations from that review.
- Government Guidance says: -
“Putting victims first: Keeping victims and communities updated on enforcement action at key points can help them to deal with the impact the behaviour is having. Victims may feel that their complaint has been ignored if they do not see changes to the behaviour. Letting victims know what is happening can make a big difference.”
The Environmental Protection Act 1990
- Under sections 79 and 80 of the Act, if someone complains about noise that could be a nuisance, the Council should investigate and decide whether it is a statutory nuisance.
- If the Council identifies a statutory nuisance then it must serve an Abatement Notice on the person responsible. An Abatement Notice is not time-limited. Failure to comply with a notice can result in a fine of up to £5,000, with a further fine of up to £500 for each day on which the offence continues after conviction.
The Council’s policy
- The Council policy says anti-social behaviour includes violence or threats of violence against people or property; intimidation and harassment; noisy and rowdy behaviour; and aggressive and threatening language or behaviour.
- The Council can send “Fairway” letters to tell parents their child has been involved in anti-social behaviour.
- The Council can also send Fairway waring letter to adult perpetrators. If It sends two warning letters and there is another incident it will invite the perpetrator to discuss their behaviour and give them the opportunity to agree an Acceptable Behaviour Contract. It this does not work it can serve a Community Protection Notice.
- Housing Services Anti-Social Behaviour Team investigates and/or provides advice to victims in cases of anti-social behaviour where the perpetrator does not live in Council owned property. Before investigating the allegations, the Team should assess if the victim is vulnerable.
- Where the Council considers someone medium or high risk, it gives the victim a personal support plan and co-ordinates support actions. It uses early intervention tools, including Fairway letters and Acceptable Behaviour Contracts on those who behave anti-socially. It will regularly review its actions and the support it gives. It will co-ordinate work on tackling anti-social behaviour with partner agencies.
- On receiving a complaint of anti-social behaviour the Council will start an investigation within three working days. It will liaise with the Police and other agencies, such as Children and Family Services, as appropriate. Whenever practicable, officers will complete their investigations within ten working days.
- When the Council is satisfied the complaint is justified, it will agree a plan of action with the complainant. This may involve the complainant keeping a diary of future incidents, contacting the Police about any criminal activity or providing statements. The Council will interview the person responsible for the alleged behaviour (or if children, their parents or guardian) if the complainant agrees to this. Where there is strong supporting evidence the Council will give the person responsible a warning about future conduct. Officers will seek cooperation from that person and wherever possible offer advice on the steps that they could take to minimise any nuisance. Where there is continuing conflict between neighbouring families it will make an offer of mediation. Where the behaviour is criminal and confirmed by the Police, it can send a joint warning letter.
- Where evidences of nuisance or anti-social behaviour continues, it will give the perpetrator an opportunity to enter an Acceptable Behaviour Contract. It will also consider Civil Injunctions, Criminal Behaviour Orders or other legal and non-legal remedies where suitable.
- When the Council receives a report of anti-social behaviour and it considers the victim of medium or high risk of vulnerability it will investigate the case as a priority. For lower risk victims, it will give advice and investigate the case when resources allow.
- Mrs X and her partner Mr Y are pensioners. They lived next door to Ms A in a cul-de-sac. Ms A privately rented. In February and April 2015 Mrs X told the Council about excessive litter in the garden of Ms A’s house blowing into the street and neighbouring gardens.
- Between June and August 2015 Mrs X and another neighbour (Ms Z) kept diaries. They logged more litter and items left in the street. They made comments on the lifestyle of Mrs A. They also noted Ms A and her family shouting and swearing inside the house, outside the house and in the road. They logged Ms A’s teenage son and daughter and their friends being rowdy in the road, throwing stones and bottles, playing football and doing bike tricks. They logged Ms A’s dog barking and loud music from the house and car. Mrs X also logged Ms A gesturing towards her security camera and house, calling Mr Y a pervert and shouting “out, out, out” at her. Mrs X and Ms Z also reported problems with another family in the cul-de-sac (family B) who were friendly with Ms A’s family.
- Mrs X told the letting agent for Ms A’s property about the problems
- Ms A and her family made many unpleasant comments about Mrs X, Mr Y and Ms Z on Facebook.
- On 28 August 2015 Mrs X and Mr Y met with a Council Anti-Social Behaviour (ASB) Officer and a Police Community Support Officer (PCSO). Mrs X gave the ASB Officer her diary sheets. The ASB Officer read them and said what Mrs X reported was not anti-social behaviour. The ASB Officer suggested reporting the barking dog to the dog warden and the litter to Environmental Control. The ASB Officer suggested mediation but Mrs X and Mr Y did not want to do this.
- Mrs X offered the ASB Officer printouts from Facebook, The ASB Officer said the printouts were about two inches thick. The ASB Officer said she did not want to see the printouts. She said if they contained threatening or abusive language Mrs X should tell the police, otherwise Mrs X should take civil action against Ms A.
- Mrs X had contacted Children’s Social Care because of her concerns about the welfare of younger members of Ms A’s family. She asked the ASB Officer to contact Children’s Social Care. The ASB Officer agreed but again said there was no action she could take.
- The Council did not assess if Mrs X and Mr Y were at a medium or high risk as vulnerable victims. It says as Mrs X had already contacted the Police, the Police carried out its own assessment of vulnerability. It says the Police did not consider Mrs X and Mr Y were vulnerable. It says the Police and the Council regularly discuss cases where it considers victims are high or medium risk vulnerable. It says although Mrs X and Mr Y did not meet its definition the Council and Police did discuss the case at their meetings.
- On 7 September Environmental Control wrote to Ms A about the refuse in her garden and gave her seven days to remove it.
- On 21 September Mrs X asked the PCSO and ASB Officer for an update. She said her and Ms Z had made further referrals to Children’s Social Care. She said the Officer she spoke to reported Ms A was abusive to her. She reported further refuse in the garden she had reported to Environmental Health, loud music at night and the dog barking during the day. Mrs X asked if the Officers could prevent Ms A using Facebook because of the slander and “vile language” Ms A used.
- On 16 October 2015 Mrs X telephoned the ASB Officer for an update. The ASB Officer said she could not help Mrs X.
- On 22 October 2015 Mrs X complained to her MP about a lack of response from the Council. The Council responded on 2 November that it could not take action for ASB as the problem was different lifestyles. Ms A had removed the refuse each time Environmental Control contacted her about it. Mrs X should contact the police about inappropriate comments on Facebook.
- On 23 November 2015 Mrs X made a complaint to the Council. She said a rowdy gang of youths continued to gather around Ms A’s property. She still had concerns for the welfare of the younger children, as Ms A put on Facebook her husband was abusive. She said Ms A and her family had sent her hate mail, interfered with her CCTV cameras, and intimidated her in person and through Facebook. The hate mail used stick on letters to say “paedophile” and “pervert”.
- Mrs X contacted a local Councillor. The Council’s ASB team told the Councillor it was not investigating the case.
- The Police investigated criminal damage at Mrs X’s and Ms Z’s homes. Three young men, including Ms A’s and Ms B’s son pelted Mrs X’s home with snowballs. The Police considered this retaliation and asked the Council to send a warning letter under the Fairway process. On 30 November the Council sent letters to Ms A and Ms B about the behaviour of their sons. It sent the letters on Police notepaper.
- In January 2016 Mrs X contacted her MP again. She said things had got worse. She said the Police had given Ms A’s and Ms B’s sons warning letters for targeting her property and Ms Z’s property. She said family A and B responded by making false allegations on Facebook and asking others to deal with Mrs X, Mr Y and Ms Z. She said this resulted in threats from other people. She said family A put photographs of Ms Z, her home and car on Facebook. Mrs X also made another complaint to the Council about lack of action.
- The Council told Mrs X the problems she raised were matters for the Police and the ASB team did not have a role in investigating them. It said Mrs X should continue to report problems to Ms A’s landlord. If Mrs X had any concerns about the welfare of the children she should report these to the Council’s safeguarding team. The Council sent a similar response to the MP. It added the Police had not told the Council Mrs X was a medium or high risk vulnerable victim of anti-social behaviour. It also said when Mrs X contacted the ASB team it gave her prompt feedback and guidance.
- On 26 April 2016 the Council wrote to Ms A about allegations her dog was not under control.
- On 8 May 2016 the Police asked the Council to send another Fairway letter. Its notes say a criminal case against Ms A is with the Crown Prosecution Service. It expected when Ms A got the letter about this, there would be a backlash. On 17 May the Council (on Police notepaper) sent Ms A a warning letter about the postings she had recently put on Facebook and making offensive gestures in the street.
- In May 2016 Mrs X sent the Council five emails about what had happened recently. She said they were awaiting a court date. She said Ms A had left her children alone for three days. The Council decided there was nothing it could help Mrs X with. It repeated its advice to contact Ms A’s landlord and make reports to its safeguarding team.
- On 30 July 2016 Mrs X and Mr Y told the Council Ms A’s son was harassing them and they had CCTV footage. On 2 August Mrs X and Mr Y sent the Council’s Customer Services Team copies of new offensive Facebook comments posted by Ms A. Customer Services decided it could not take these emails as complaints and Mrs X should contact the ASB Team and the Police.
- On 25 August 2016 the Court found Ms A guilty of harassment and gave her a two year restraining order. Ms A breached the restraining order and was then electronically tagged and given a curfew.
- On 9 and 10 December 2016 there was a two day party at Ms A’s house, causing Mrs X and others to call the police about the noise and drunken behaviour. Mrs X also contacted Environmental Control about the noise.
- On 12 December an Environmental Control Officer completed a risk assessment of Mrs X and Mr Y’s vulnerability. The form says Mrs X does not know who the offender is and the offender had no history or reputation for intimidation or harassment. The Officer found Mrs X and Mr Y a low risk. The Council says the Officer got the information he used in the assessment from Mrs X. Mrs X says the Officer never asked her these questions. This is supported by the note the Officer made of his telephone conversation with Mrs X. This only mentions Mrs X’s complaint and gives no details of the offender or any previous intimidation or harassment.
- The Council wrote to Ms A to say it had received complaints of loud noise from late night parties at her house. It said if it received further complaints it would be obliged to investigate. The Council sent Mrs X a diary to complete.
- On 15 December 2016 the Council wrote to Ms A about refuse in her garden and gave her seven days to remove it.
- Ms A moved out of the area in early January 2017.
- In June 2017 Mrs X wrote to the Council and her MP about her disappointment with the way the Council had dealt with the problems and asking how it would improve this. The Council responded to the MP that Mrs X’s complaint was historic; it had replied to her on several occasions. It said it could not add to its previous responses.
- In November 2017 Mrs X wrote to the Chief Executive. A Service Director responded and said he was satisfied with the response of the ASB Team. He said what Mrs X reported was not serious enough for the Council to apply for an interim management order.
- The Council says it did not investigate Mrs X’s concerns as she contacted the Police first and the Police were leading the investigation.
- The Council says it did not tell Mrs X about the community trigger as the information is on its website. It says in responding to us it had reviewed the case under the community trigger principles. It says it considers it took the right action.
- The Council has now carried out a new risk assessment using information from the draft of this decision. It changed the score from low to medium risk. It said this shows it would not have reached a different view on vulnerability. It said it remains of the view the impact of the behaviour did not “carry a risk to Mrs X’s health, emotional wellbeing or ability to carry out daily activities without intimidation”.
- The Council says the Police investigated this case. I accept the Police took the lead role and investigated the harassment Mrs X and Mr Y faced. This does not mean there was no role for the Council. It should have investigated the complaints of anti-social behaviour and noise.
- The Council says what Mrs X reported to it was not anti-social behaviour but mainly related to clash of lifestyles. Mrs X did make comments about the lifestyle of her neighbours. However, what happened between Mrs X and her neighbours was not just a clash of lifestyles. Ms A’s behaviour was such the Police obtained a criminal conviction against her for harassment.
- At the meeting in August 2015 Mrs X also reported matters that, if confirmed, would be anti-social behaviour. She reported loud music, rowdy behaviour in the street, swearing and shouting and intimidating behaviour. The Council decided this was not anti-social behaviour without any investigation. It also did not investigate if the noise could be a statutory nuisance.
- Mrs X offered the Council copies of Facebook postings made by Ms A. The Council refused these and said Mrs X should give them to the Police. While it was important Mrs X showed the Police the copies, it was also important for the Council to read them. Without looking at them the Council could not know if they contained important information about the allegations of anti-social behaviour made by Mrs X.
- The Council did not investigate the noise when Mrs X reported it again in September 2015.
- The Council did not do a risk assessment for how vulnerable Mrs X and Mr Y were. It says the Police did this. I have seen no evidence the Council asked the Police about this or obtained a copy. When the Council did its own risk assessment in December 2016 it contained wrong information. It said Mrs X did not know who the offender was. Mrs X would not know who attended the party but she did know who was responsible for the party. The assessment says there was no history of intimidation or harassment from the perpetrators. Ms A, the head of the household, had a criminal conviction for harassing Mrs X and others. The Police told the Council several times that any action taken against family A would result in retaliation against Mrs X and Mr Y. If the Council has used the correct information it would have reached a different view on Mrs X and Mr Y’s vulnerability.
- I further consider the Council should have considered Mrs X and Mr Y’s vulnerability when it sent the Fairway letters. The Police told the Council about the retaliation against Mrs X and Mr Y and Ms A’s harassment of them. The situation had changed and the risk to Mrs X and Mr Y had clearly increased, yet the Council did not review their vulnerability and what support it should provide.
- The Council has reconsidered the assessment and says if it had all the information it would have assessed Mrs X and Mr Y as a medium risk. It says this would not have made a difference. This is incorrect. Under the Council’s policy as a medium risk Mrs X and Mr Y were entitled to support from the Council and an action plan.
- The Council says it believes the impact of the behaviour did not carry a risk of harm or worsening of health or emotional wellbeing to Mrs X and Mr Y. It says it would not affect their ability to carry out daily activities. It is difficult to know how the Council has this view when in August 2016 a criminal Court convicted Ms A of harassing Mrs X and others. The court considered the threat of harm to Mrs X and others so real it put a restraining order on Ms A.
- The Council caused injustice to Mrs X as it did not investigate her complaints of anti-social behaviour and noise. It also did not carry out/review her vulnerability.
- I cannot know if an investigation by the Council would have resulted in any other action against Ms A for anti-social behaviour and noise, but it is possible. I can say that if the Council had carried out/reviewed a risk assessment it would have realised Mrs X and Mr Y were vulnerable and provided support to them.
- To put matters right for Mrs X within one month of my final decision the Council will:-
- Apologise to Mrs X and Mr Y.
- Pay Mrs X £300 for the missed opportunity to investigate her complaints, the lack of support and her time and trouble.
- Confirm to the Ombudsman in future it will consider all evidence provided by a victim of anti-social behavior and review the vulnerability of victims as a case progresses.
- I have found fault by the Council causing injustice to Mrs X. The Council has agreed to my recommended remedy. I have completed my investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman