Decision : Not upheld
Decision date : 28 Nov 2018
The Ombudsman's final decision:
Summary: Mr X and his neighbours complain about the way the Council investigated their reports of antisocial behaviour in a cemetery next to their homes. He says it failed to resolve their complaints about this matter and they have suffered, and continue to suffer from the antisocial behaviour on a daily basis, at all hours of the day. The Ombudsman cannot reach a conclusion on this complaint based on the limited documentary evidence available, therefore we cannot find the Council was at fault.
- The main complainant, who I shall refer to as Mr X, complains about the way the Council investigated his and his neighbours’ reports of antisocial behaviour in a cemetery next to their homes. He says it failed to resolve their complaints about this matter and they have suffered, and continue to suffer from the antisocial behaviour on a daily basis, at all hours of the day.
- I have investigated how the Council dealt any reports and complaints made by Mr X and two of his neighbours about antisocial behaviour in the cemetery, from the beginning of 2016 onwards.
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)
- 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 have:
- Read Mr X’s complaint and the documents he submitted in support of it.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision.
What I found
- The Anti-Social Behaviour, Crime and Policing Act 2014 introduced a measure called the “Community Trigger”. This is a process that enables victims of antisocial behaviour to require agencies, such as the police and local authority, to carry out a review of their responses to the anti-social behaviour they reported, where they feel they did not get a satisfactory response.
- The Council’s website states the local Community Trigger is activated when an individual makes three complaints about antisocial behaviour within a six-month period, or a group of five individuals within a local community have separately reported similar incidents of antisocial behaviour. It adds an incident must be reported within one month of it taking place, and the last reported incident must have occurred within the previous six months.
- To activate the Community Trigger, the website advises individuals to call Hampshire Police on the non-emergency number, 101. The website says the matter will then be referred to the Council and it will consider whether the threshold for further action has been met.
- At the beginning of 2016, Mr X moved into retirement housing provided by the Council. He says he started experiencing antisocial behaviour shortly after moving in, when a woman and her children started visiting a grave located in the cemetery next to Mr X’s housing complex. He states the grave is less than 20 metres from his living room window and the woman and her children caused a lot of noise. He says he spoke to his neighbours about the matter and they said this was not a new occurrence, although they warned against complaining as they thought this would exacerbate the bad behaviour and lead to possible retribution.
- In the summer of 2016, Mr X states the level of antisocial behaviour increased therefore his son-in-law contacted the Council’s Bereavement Services Team to try and resolve the issue. He says his son-in-law subsequently spoke with the cemetery Gatekeeper on four separate occasions and this person admitted there was an issue, but stated he had given up trying to manage the problem. Mr X says the Gatekeeper added he had faced considerable resistance from the family of the woman responsible for most of the noise when trying to address the issue, and his boss had simply told him to close the gates when everyone had left, regardless of the time. Mr X states the noise lessened after this, but attributes this to a change in the weather.
- Mr X says the problem started again in 2017 and worsened when another member of the woman’s family was buried next to the grave. He states this resulted in more frequent visits from the family, increased noise caused by unruly children, arguing, and some fighting. He says the disturbances often occurred in the early afternoon and evening and the noise was so unbearable he frequently had to leave the house.
- In May 2018, Mr X and his neighbour complained to the local supported housing team about the matter. A housing management officer responded in writing and stated his team were unable to deal with the matter as it was out of their jurisdiction. However, he advised Mr X and his neighbour to complain directly to the cemetery staff as they were best placed to investigate the matter. He also suggested they might want to complain to the Environmental Health Team.
- Mr X then submitted a written complaint to the Council which was co-signed by several of his neighbours. He referred to the history of the matter and stated the Council had failed to act, noting the admissions made by the cemetery Gatekeeper. As well as the behaviour previously described, he said the families were arguing and fighting, children were running across graves being noisy and offensive, catapults were being used, multiple cars and vans were being parked on grass verges, power tools were being used excessively, and individuals were being allowed to visit outside of normal opening hours. He added this was happening at all times of the day, although he noted the fighting and launching of missiles by catapult were not common.
- He stated individual incidents had been reported to Hampshire Police and questioned why they were reluctant to act. He said he and his neighbours could not tolerate the antisocial behaviour anymore and proposed a number of measures the Council could take to address the problems. He proposed that: visitors should only be allowed during the designated opening hours; the gates should be locked at all other times and the staff should contact the Police if they felt intimidated; the use of power tools she be restricted to once a week at a reasonable hour; children should be under the control of their parents and should act in a respectful manner; and visitors known to be trouble makers should be informed that opening hours were under review and could be reduced if their antisocial behaviour continued.
- At the end of May 2018, the Bereavement Services Manager wrote to Mr X and stated she would respond to his complaint within 20 working days. She then commenced an investigation and emailed those staff who worked at the cemetery to ask them whether they had ever seen, or received reports of the antisocial behaviour described by Mr X. She also spoke with the Gatekeeper, or as he is known at the Council, the Senior Cemetery Operative about the matter and the concerns raised by Mr X. None of those she consulted raised any concerns about antisocial behaviour or corroborated the account given by Mr X.
- In mid-June 2018, the Bereavement Services Manager wrote to Mr X to notify him of her findings into his complaint. She described the extent of the investigation she had undertaken but stated the Council did not have any recent reports of the antisocial behaviour he had described. However, she advised him and his neighbours to continue reporting any incident which took place to the Police, as they could deal with the matter in a timely manner when the perpetrators were still within the grounds of the cemetery. She confirmed this is what the cemetery staff would do if they witnessed antisocial behaviour occurring. She did outline the steps the Council were taking to address the parking problem, but noted the measures he proposed could not be implemented and explained why.
- A few days later, Mr X wrote to the Council’s Customer Relations Manager to escalate his complaint. He said the Bereavement Services Manager had rejected all his points out-of-hand and claimed no reports of antisocial behaviour had been made. He added this was in spite of the complaints made by him and his neighbours, the previous admission of the Gatekeeper, and the numerous attendances by the Police. Three days later, one of customer relations officers wrote to Mr X to acknowledge his complaint and confirm he would investigate it and respond within 20 working days.
- At the end of the month, Mr X wrote to the Council’s Environmental Health Team and referred to an online complaint he had made about the noise in the cemetery being created by visitors. He said this was taking place on a daily basis between the hours from 12 to 2pm, and 6 to 9pm. He asked that five of his neighbours be added to the complaint.
- On the same day, Mr X discussed his concerns with the local housing manager, who advised him to continue calling the Police and to raise the personal alarm in his home if the antisocial behaviour took place again. Mr X did the latter the following day, shortly after 1pm to report youths in the cemetery. He raised his alarm again in mid-July 2018 later in the evening to report a disturbance and noise being made by youths. The operator referred the matter to the Police as there was no officer from the Environmental Health Team on duty.
- Ten days after raising the alarm for the second time, the Customer Relations Officer dealing with Mr X’s complaint responded to it. He said he was unable to uphold it and found no fault in the way the Council had dealt with Mr X’s concerns. Similarly, he stated the Council could not take enforcement action to address those concerns if they were not documented or reported, and it was reasonable for Mr X and his neighbours to report incidents to the Police using the non-emergency 101 number, but they had not done so. In addition, he stated he had not investigated anything that had happened after Mr X had escalated his complaint, and provided information about the Community Trigger, how to report instances of antisocial behaviour, and the Council’s duty in relation to statutory nuisances.
- At the beginning of August 2018, Mr X complained to the Ombudsman about the matter. In addition to the points already raised, he says he has suffered from stress because of the antisocial behaviour and has been prescribed medication from his doctor for anxiety. He also says he regularly left his house to avoid the noise created by the antisocial behaviour, although highlights he has now moved to a new home. He wants the Council to make a financial payment to him to recognise the distress he has been caused, and to close the cemetery gates at a reasonable time.
- When investigating this complaint, I asked the Council to provide me with copies of all reports or complaints made by Mr X or his neighbours about antisocial behaviour dating back to 2016. I also asked Mr X to provide copies of any complaint or report he had made. The earliest record I received is the letter the housing management officer sent Mr X and his neighbour in May 2018, advising them to complain to the Bereavement Services Team. As there are no contemporaneous records which document any reports or complaints made by Mr X or his neighbours before this date, I cannot conclude the Council was at fault for not taking any action in response to their concerns. I am not saying the antisocial behaviour did not happen or the account provided by Mr X is inaccurate, rather I am merely saying I cannot reach a conclusion based on the limited documentary evidence available to me.
- Despite this, I have reviewed how the Council dealt with Mr X’s complaint. It did acknowledge his written complaints and respond to them within the timeframes it quoted. I am also content the Council conducted a thorough investigation into Mr X’s complaint and his concerns.
- However, the advice it gave to Mr X and his neighbours about what they should do if they witnessed antisocial behaviour taking place or experienced a noise nuisance could have been clearer. In relation to the former, Mr X was advised to continue calling the Police. This is fine, but he was not provided with details of the Community Trigger process in the stage one complaint response. The stage two response did refer to this process but it did not state how or when the Community Trigger could be initiated. Similarly, this response refers to the Council’s duty to deal with statutory nuisances but does not state what Mr X or his neighbours should do if they think a noise nuisance is taking place, such as using the Council’s online reporting system. Moreover, this response is disjointed, long-winded, and confusing.
- Nevertheless, I do not believe these issues constitute fault, rather I see them as a customer service issue that the Council might want to consider. For example, in this case it could write to Mr X and his neighbours to clarify what they should do if antisocial behaviour or a noise nuisance occurs. Although these matters are similar and often interlinked, there are separate processes for reporting them and some instances should be reported to the Council, whereas others should be reported to the Police. This can be confusing for the public therefore the Council could make these processes clearer.
- I cannot reach a conclusion on this complaint based on the limited documentary evidence available, therefore I cannot find the Council was at fault.
Parts of the complaint I have not investigated
- I did not investigate the complaint Mr X made at the beginning of July 2018 about compost heaps located next to the cemetery. This is because this matter did not form part of his original complaint and I understand he has made a separate complaint to the Council about this matter.
- Likewise, I did not investigate the online complaint Mr X made to the Environmental Health Team at the end of June 2018. I understand this Team has undertaken a visit of the cemetery at the end of August 2018, indicating it is dealing with Mr X’s concerns. If he is not content with the way the Team has dealt with, or is dealing with this matter, he should escalate his complaint through the Council’s complaints procedure. He can then complain to the Ombudsman about this specific matter if he is unhappy with the outcome.
Investigator's decision on behalf of the Ombudsman