Durham County Council (18 010 485)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 19 Dec 2018

The Ombudsman's final decision:

Summary: Mr X complained the Council’s neighbourhood wardens harassed him following a false allegation of dog fouling. The Council is not at fault. Mr X also complained the Council destroyed photographic evidence proving the allegation after he made a freedom of information request. I will not investigate Mr X’s complaint into the destruction of photographic evidence. This is because the Information Commissioner’s Office is best placed to investigate complaints into data breaches.

The complaint

  1. Mr X complained the Council’s neighbourhood wardens have harassed him following malicious allegations of dog fouling. He believes the Council has lied as its dates of the alleged incident and visit to him are incorrectly recorded. He says the Council deleted photographic evidence of the incident following his freedom of information request.
  1. Mr X states the Council’s actions have left him terrified and unable to leave his home.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
  3. 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)

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How I considered this complaint

  1. I discussed the complaint with Mr X and considered the information he provided.
  2. I considered information provided by the Council.
  3. I referred to the Anti-Social Behaviour, Crime and Policing Act 2014.
  4. Mr X and Council both had the opportunity to comment on my draft decision.

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What I found

  1. The Anti-Social Behaviour, Crime and Policing Act 2014 introduced Public Space Protection Orders (PSPOs) and Community Protection Notices (CPNs). PSPOs made it an offence to allow your dog to foul and not pick the waste up. The PSPO states that the person in charge of the dog must “remove dog faeces from any land which is open to the air and to which the public have access”.
  2. Dog owners may receive a Fixed Penalty Notice of up to £100 for failing to pick up their dog’s waste. This does not apply to those who are registered blind or partially sighted and responsible for an assistance dog.
  3. A CPN is intended to prevent unreasonable behaviour that is having a negative impact on the local community’s quality of life. Any person over the age of sixteen can be issued with a CPN. It specifies the behaviour that must stop and reasonable steps to ensure it does not happen in the future. Failing to comply with a CPN is a criminal offence.
  4. Before being given a CPN, a written warning must be given. The written warning specifies the behaviour considered anti-social and gives a time the behaviour is expected to have changed by. It explains that if the behaviour does not change, a CPN may be given.
  5. CPNs and written warnings can be issued by Police Officers, the Council and Police Community Support Officers.

What happened

  1. In March 2018, a resident told the Council that Mr X was allowing his dog to foul and was not picking the waste up. The resident also sent the Council a photograph of the dog. The photograph did not show whether or not Mr X failed to pick up the dog’s waste so the Council deleted the photograph.
  2. Following this allegation, two Council neighbourhood wardens visited Mr X in April 2018. Mr X states the wardens told him they had photographic evidence of him failing to pick up his dog’s waste. Mr X disputed this allegation and stated it was malicious following a complaint he had made about youth nuisance. He asked to see the photographic evidence but says he was told he would have to make a freedom of information request.
  3. During this visit, Mr X told the wardens that if his dog did accidently foul, he was not physically capable of picking it up due to ill health. He told the wardens the dog fouled in an area of uncultivated land where it was allowed.
  4. After this visit, Mr X made a subject access request by email, asking to see the photograph and details of the complaint.
  5. On 11 May 2018, two Council neighbourhood wardens visited Mr X. Mr X states they told him they had received more complaints about his dog fouling. The wardens issued Mr X with a written warning stating he was at risk of being given a CPN if this behaviour continued.
  6. The Council state they had enough evidence to give Mr X a written warning because:
    • Mr X had admitted he was unable to pick up his dog’s waste; and
    • The Council had received two complaints of dog fouling.
  7. Mr X says the wardens told him to get evidence from his doctor if he was medically unable to pick up dog waste.
  8. Mr X got a letter from his doctor. It explained because of chronic back problems, he could not bend down to pick up his dog’s waste.
  9. In July 2018, the Council responded to Mr X’s freedom of information request. It did not send any photographs explaining they had been destroyed. Mr X states he was only provided with two minutes of body-cam footage despite the conversation with the neighbourhood wardens lasting much longer.
  10. The complaint information said the incident of dog fouling occurred at 9:20am on 24 March 2018. Mr X says he was at home then.
  11. The visit from the wardens is recorded as 9 April 2018. Mr X says this is incorrect because he made the freedom of information request immediately following their visit on the 5 April 2018. He feels this is evidence the Council has falsified records.
  12. Mr X states he got legal advice as he was unhappy the Council had destroyed photographic evidence. He also believed the Council’s neighbourhood wardens were harassing him by parking outside his home. Mr X made a complaint to the Police stating the neighbourhood wardens had committed an offence of misconduct in public office. The Police told Mr X there was insufficient evidence for them to take any action.
  13. Mr X says the Police told him the written warning would be withdrawn. However, the Council has confirmed there were no grounds to withdraw the warning and it remained in place until 11 November 2018.
  14. On 23 August 2018 Mr X contacted the Council to report harassment by its neighbourhood wardens.
  15. On 3 September 2018, the Council contacted Mr X to confirm his concerns had been investigated. They explained neighbourhood wardens cover several villages and may have been in the village investigating issues relating to other properties. Wardens also work remotely and they may have been writing up their notes.
  16. On 10 September 2018, Mr X made a written to complaint to the Council.
  17. On 1 October 2018, the Council sent Mr X its final response to his complaint. It said it had completed an internal investigation; however, as this related to the conduct of a member of staff, it was confidential.
  18. The Council reinforced it was an offence to allow a dog to foul and not pick the waste up. It stated it had considered the evidence provided by Mr X’s doctor but an exemption did not apply to his circumstances. His dog is not a registered guide dog or trained assistance dog. The Council confirmed Mr X had taken the right course of action in reporting his concerns over the deletion of information to the Information Commissioner’s Office.
  19. The Council advised Mr X to contact the Ombudsman if he remained unhappy.
  20. Mr X tells me the situation with the Council appears to have improved. He says the Council has provided the full body-cam footage. He says he has purchased a long armed ‘poop scoop’ and is able to pick up his dog’s waste.

My findings

  1. Mr X feels the community warden’s actions have amounted to harassment and they have lied, fabricated dates of visits and destroyed photographic evidence.
  2. Mr X states the wardens visited on 5 April 2018; the Council’s records indicate they visited on 9 April 2018. Mr X says he made his freedom of information request immediately after the wardens visit. This was the 5 April 2018. On the balance of probabilities, it is most likely the Council has incorrectly recorded the date it visited Mr X. This is evidence of a minor administrative error but it does not amount to fault and in any case, it has not caused Mr X an injustice.
  3. Mr X believes the allegations of dog fouling were malicious and the warden’s behaviour has amounted to a course of harassment. It is the neighbourhood wardens’ job to follow up complaints of anti-social behaviour. They visited Mr X after two complaints. There is no fault in the Council’s actions.
  4. When the wardens visited Mr X, he told them that he was unable to pick up his dog’s waste because of his health conditions. As Mr X is not registered blind he has to pick up his dog’s waste. It is not allowed to toilet on uncultivated land. The Council gave Mr X a written warning. The Council is not at fault.
  5. Mr X states the wardens parking outside his home has left him terrified to leave his property. The Council has offered a reasonable explanation for why the warden’s might park in that area. In addition, the wardens are entitled to park in the village as this allows them to identify anti-social behaviour.
  6. There is no fault in how the Council investigated the allegations about Mr X not picking up his dog’s waste.

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Final decision

  1. Mr X complained the Council’s harassed him after an allegation of dog fouling was made. The Council is not at fault. Therefore, I intend to complete my investigation

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Parts of the complaint that I did not investigate

  1. Mr X complained the Council deleted photographic evidence of his dog fouling after he made a freedom of information request. He said the Council delayed in giving him the information requested and failed provide all the information held. I have not investigated this part of the complaint because the Information Commissioner’s Office is better placed to deal with complaints about breaches of personal data.

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Investigator's decision on behalf of the Ombudsman

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