Barnsley Metropolitan Borough Council (18 016 297)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 27 Aug 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complained the Council has failed to act on the evidence they provided alleging their neighbour has breached a court injunction. They say this failure has causing them to suffer continued distress because of the neighbour’s ongoing behaviour. The Council has considered their evidence alongside other evidence and decided the evidence is not sufficient grounds to take further action. There was not fault in how it made this decision, or its decision regarding planning enforcement.

The complaint

  1. Mr and Mrs X complain the Council has failed to take action on alleged breaches of a court injunction controlling their neighbour’s behaviour. They say the Council has not properly considered or has unfairly dismissed evidence they have provided.
  2. They say the Council’s response to their complaint is contradictory and refers to unfounded and unstated allegations about them, without giving them a right to respond.
  3. They say the Council’s failure to take action, including planning enforcement action, has caused them and other local people severe ongoing distress.

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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. 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 spoke to Mrs X about her complaint and considered evidence she provided.
  2. I asked the Council about the complaint and considered its reply and evidence provided.
  3. I gave the Council and Mr and Mrs X the opportunity to comment on my draft decision. As a result of comments from Mr and Mrs X I asked the Council further questions and considered its answers.

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What I found

  1. Councils have a duty to take action to combat anti-social behaviour. They respond to and investigate complaints about anti-social behaviour, liaising with police and other agencies as necessary.
  2. The Anti-social Behaviour Crime and Policing Act 2014 gives councils powers to ask a court to make a civil injunction to control anti-social behaviour. Courts can issue a civil injunction when, “on the balance of probabilities”, they decide someone has engaged in, or threatens to engage in anti social behaviour.
  3. Courts treat a breach of a civil injunction as a contempt of court offence. The standard of proof to determine that a breach has occurred is the criminal standard of “beyond reasonable doubt”. This means councils need to decide, before bringing a breach of injunction case to court, whether it is likely to meet this standard.
  4. Councils have discretion about whether to take planning enforcement action. They can issue an enforcement notice if they decide this is expedient.

What happened

  1. Mr and Mrs X live in a residential street. Several years ago, Mr Y moved into a property in the street. Mr and Mrs X reported allegations of anti-social behaviour by Mr Y to the Council. This included excessive use of vehicles blocking access to the road.
  2. The Council investigated and arranged mediation meetings, ending with agreement from all parties. Mr Y’s behaviour continued to cause concern. The Council issued a planning enforcement notice preventing use of the residence for business use.
  3. Further mediation took place resulting in a mediation agreement. Mr Y’s behaviour continued to cause concern. The police placed community protection notices on Mr Y. Then the court issued a Civil Injunction against Mr Y after he blocked the road with a commercial vehicle. This stated he could not park any large commercial vehicle or trailers in connection with his business on the road and he could not act in a way likely to cause harassment, alarm or distress.
  4. Mr and Mrs X sent the Council evidence they had collected of Mr Y’s continued behaviour. The Council wrote to Mr Y with a warning letter using the information Mr and Mrs X had collected. It met with a member of police staff to discuss its review of the evidence. It considered whether to apply to court to decide if Mr Y was in contempt of court by breaching the injunction.
  5. Mr Y responded to the Council about the allegations. He made counter allegations about Mr and Mrs X. The Council wrote to Mr and Mrs X responding to their request for action. It summarised its investigation and contact with Mr Y, including his counter allegations. It explained what these counter allegations were.
  6. It said that a breach of the civil injunction could result in a prison term. It therefore had to consider evidence carefully and decide whether it was proportionate and reasonable to apply for an order. The officer said he “was minded to accept some of [Mr C]’s reasoning and the counter allegations he has made”.
  7. The Council said having considered Mr and Mrs X’s evidence and Mr Y’s counter allegations, it would not take further action for the alleged breach. The officer said he would “close my file and [did] not at the present time intend to take any further action against [Mr Y]”.

Mr and Mrs X’s complaint to the Council

  1. Mr and Mrs X complained to the Council, setting out an updated diary explaining why they considered Mr Y had breached his injunction many times. This included reports, sometimes several times in the same day over several months. These included details of when vehicles were parked in the road and other alleged anti-social behaviour by Mr Y. They explained how Mr Y’s behaviour was ruining their quality of life.
  2. They complained the Council had refused to prosecute Mr Y for breaking the planning enforcement and civil injunction notices. They also complained the Council had unfairly decided to close the case without giving them the opportunity to challenge Mr Y’s counter allegations. They said the Council had accepted his version of events without giving them a chance to tell their side.
  3. The Council replied to say in summary that:
    • It had to decide whether prosecution was fair and proportionate and if it was likely the available evidence would prove offences beyond reasonable doubt.
    • It had reviewed all the evidence provided by Mr and Mrs X. It was not clear from this that the alleged offences could be proved beyond reasonable doubt.
    • There was evidence commercial vehicles had been parked outside but the timescales were reasonable and it was not proportionate to prosecute for a breach.
    • Having considered the evidence, the case could stay closed unless there was a sound legal basis to prove beyond reasonable doubt a breach had occurred. The diary sheets were not sufficient to prove a breach beyond reasonable doubt.
    • Some of Mr and Mrs X’s reports were matters for the police.
  4. It referred Mr and Mrs X to the Ombudsman. They told us the Council had ignored evidence they had provided, that they had provided evidence to show vehicles had been parked for up to 22 days and that they had no quality of life because of the Council’s refusal to act.
  5. Mrs X told me other neighbours had complained and that the Council had previously said it had enough evidence to take action.
  6. The Council told me:
    • It had sought the court injunction because Mr Y was using a coach to block the street.
    • The images Mr and Mrs X shared were mostly of buses parked on the street, not of actions a court was likely to consider as sufficient evidence, beyond reasonable doubt, of proof that Mr Y had committed contempt of court.
    • Mr and Mrs X had not provided the Council with evidence a bus had been parked for more than 20 days without moving. If they had, the Council may have considered this was evidence of unreasonable behaviour and would likely have taken action regarding a breach of the injunction.
    • Mr Y had given reasonable explanations for his use of the coach.
    • It had explained to Mr and Mrs X the need to provide evidence of parking for at least 5-10 days without moving before it could take action.
    • It had previously asked people living on the street for evidence about anti-social behaviour and had considered the single response to this but had not received any further reports.
    • Since the injunction it had only received a complaint about the neighbour’s actions from one other person and it had investigated this, deciding again it did not meet the threshold for further action.
  7. The Council said that to decide whether to take action, it had to consider Mr Y’s likely defence in court. His counter allegations about Mr and Mrs X could be used in his defence.
  8. It confirmed if Mr and Mrs X provided evidence enough to justify it taking the case to court it would follow this up, despite its reference to closing the file.
  9. Mr and Mrs X had also complained about a structure in Mr Y’s garden. I asked the Council about how it had considered this matter. It said it had been subject of several planning enforcement complaints. It had granted retrospective planning permission for a raised patio area. During my investigation it investigated a raised structure to the rear of the property which had been dismantled to comply with an enforcement notice. It had decided, based on its inspection, that no further action was needed.

My findings

  1. Only the court can say whether or not Mr Y has breached the civil injunction. I can only consider whether the Council has followed the correct process to make its decision not to take the matter to court, based on the evidence it currently has.
  2. The evidence Mr and Mrs X provided the Council included large numbers of photos and diary sheets. Mr and Mrs X say the Council has not asked them for updated evidence. The Council says it has not had such evidence but that if there was evidence of commercial vehicles continuously parked for several days, Mr and Mrs X should provide this and it would consider taking further action.
  3. The Council considered Mr and Mrs X’s evidence alongside Mr Y’s correspondence. It has not ignored their evidence, as shown by its analysis of the evidence in its replies to their complaint. It decided the evidence was not enough to take action, having also had regard to what Mr Y said. It was entitled to consider all the evidence from both parties and what might be said in court as the basis for whether or not to go to the court. There was no fault in how it reached this decision.
  4. It was appropriate for the Council to decide, in the round, whether all the evidence likely to be presented at court, including from Mr Y, would pass the criminal test of proving a breach, beyond reasonable doubt. Whilst it is for the court alone to decide on whether a breach has occurred, the Council had to weigh this up when considering whether action was proportionate.
  5. The Council has explained the basis for the 5-10 days threshold about what might constitute unreasonable activity. It has told Mr and Mrs X to contact it if they are unsure whether new evidence meets the threshold and it will advise them accordingly. It has confirmed that if Mr and Mrs X have evidence that vehicles have been parked for longer than this they should provide this evidence and it will consider this. There is no fault in how the Council has advised Mr and Mrs X about these matters.
  6. Mr and Mrs X strongly refute Mr Y’s counter allegation. However it was not fault for the Council to consider that counter allegation as part of its deliberations, because it would likely be brought up in court.
  7. Although the Council’s letter to Mr and Mrs X said it had closed its file, it has confirmed to the Ombudsman that if it receives reports of behaviour with sufficient evidence to justify it taking legal action it will follow these up.
  8. The Council has taken previous enforcement action about the structure Mr and Mrs X complained about. It has decided to take no further action having properly investigated and considered the situation. There is no fault in how it made this decision.

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Final decision

  1. I have completed my investigation. I have not found fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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