Torbay Council (18 018 793)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 20 Sep 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council did not properly investigate her allegations of anti-social behaviour and has not agreed to implement suggestions she made about how it can improve its service. We found although the Council’s overall decision on Ms X’s complaint was an exercise of its professional judgement, the way it communicated its actions and a significant delay in dealing with her later complaint were fault. This caused Ms X an injustice in the form of frustration and the Council has agreed with the Ombudsman’s recommendation to remedy this by apologising and making a payment to Ms X.

The complaint

  1. Ms X complains the Council did not properly investigate her allegations of anti-social behaviour and has not agreed to implement suggestions she made about how it can improve its service. She also says the officer who assessed and investigated her complaint is not suitable for the job or to work with vulnerable people. Ms X says she has been left distressed and has had to take action personally she believes the Council was responsible for.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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 read Ms X’s complaint to the Ombudsman and documents she sent us. I wrote to the Council to make enquiries and reviewed the material it sent in response.
  2. I have considered the Council’s legal obligations and have seen its policy on enforcement in matters such as this.
  3. I shared a copy of my draft decision with Ms X and the Council and I invited them to comment on it.

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What I found

  1. Anti-social behaviour is behaviour that causes, or is likely to cause, harassment, alarm or distress to any person. It may include verbal and physical threats and harassment. (Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014)
  2. Councils have a duty to take action to deal with anti-social behaviour and will work with partners, such as the police, to tackle it. (Section 17, Crime and Disorder Act 1998).
  3. A council will usually try to deal with anti-social behaviour informally but if necessary it can use a range of enforcement powers. Councils should tell the person reporting anti-social behaviour what action it is taking to deal with it.

What Happened

  1. Ms X complained to the Council about anti-social behaviour (ASB) in January 2018. She said a nearby resident was engaging in ASB over the use of a car parking area that she owned. Ms X provided a summary of incidents dating from June 2017 to the time of the complaint. The Council says it assigned a case officer who telephoned Ms X the following day. The case officer arranged a meeting but then cancelled it when Ms X and her neighbours were unavailable. She then closed the case shortly afterwards due to a lack of further contact from Ms X.
  2. Ms X renewed her complaint the following month. She said as she was often travelling for work, the case officer should visit her neighbours to discuss the issue with them. She asked for involvement in the meeting and gave details for how she could be contacted by Skype or Whatsapp. The Council says the case officer visited Ms X’s neighbours but they provided “no evidence of persistent ASB”. She did not call Ms X. The officer’s case notes say Ms X’s neighbours reported no harassment and the main issue seemed to be one of parking enforcement. The Council says the failure to involve Ms X was an error and the case officer received words of advice.
  3. Ms X made further complaints to the Council in April and June 2018. She is unhappy with the lack of action or efforts to investigate during this time. The Council says the case officer explained her view to Ms X’s neighbours and there was no active investigation ongoing between Ms X’s reports.
  4. There was then a personal visit from the case officer and a more senior officer in July 2018 after Ms X complained about the Council’s service.
  5. The Council says it decided the dispute related mainly to the ownership of some land. The behaviour reported related to the use of that land by people Ms X and her neighbours were in a dispute with. It says both sides allege some harassment and intimidation from one another. Ms X denies she harassed or intimidated anyone. She says as the owner of the land she has the legal right to confront anyone trespassing on it and so she and her neighbours are the victims. She says she showed proof she owns the land at her meeting. She believes the Council should take action, up to and including seeking an injunction, on her behalf.
  6. After the meeting, the case officer wrote to Ms X and the other parties. The Council says this only came about once the officer had spoken to the people Ms X was in dispute with and members of the local policing team. The respective letters suggest both parties avoid antagonising one another and propose simple ways to avoid it.
  7. Ms X is very unhappy with the advice given in the letters. She says it encouraged the people she is in dispute with to step up their behaviour and the Council is wrong to take a neutral stance given she is an owner of the land. She says the case officer failed her a vulnerable victim of anti-social behaviour, when all she wanted her to do was write to say trespassing is an offence in civil law.
  8. The Council says although it has seen the evidence Ms X produced, it cannot make determinations on who owns land or who can use it. It says it is not for it to enforce another person’s rights against trespassers. Its position is Ms X can go to court to assert her rights as the landowner if she wants and it stands by the advice given in the letters to both parties. The Council says the local police officers share its view about the nature of the reports.
  9. Ms X complained to the case officer about her decision. She objected to the conclusions the officer had put in her letter and said, “the only thing I want is that they stop trespassing and leave us alone.” Ms X asked for a more experienced case officer to investigate the ASB reports she had made or said she would complaint using the Council’s corporate complaints process. Ms X also sent a copy of her letter to the case officer’s manager. She said, “the blatant trespassing is being done to intimate and harass” her neighbours and her.
  10. Ms X’s made a formal complaint in August 2018 and the Council replied quickly saying it had sent it to the department for a response. However, it took until December 2018 for the Council to send Ms X a written reply. Ms X says that only came about after her MP chased it on her behalf. The Council’s policy on responding to a complaint at Stage 1 says it should take 10 working days to investigate and respond in most cases.
  11. Ms X raised concerns about the case officer and her suitability for the role. The Council said it could not address personnel matters through its corporate complaints process.

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Analysis

  1. The Ombudsman is not an appeals body and cannot overturn a decision taken by a council where an officer has exercised their professional judgement while in possession of all the facts. Although ASB has a definition in law, it is for the trained officer to apply the law to the situation and decide whether it applies. We would expect them to give reasons for their decision. I cannot substitute the officer’s view of a situation for my own, even if Ms X strongly disagrees with the outcome.
  2. The Council clearly had sight of all the evidence in this case. Ms X’s initial timeline, meetings with Ms X’s neighbours and Ms X herself, contact with the local police and the alleged perpetrators were all considered. The officer’s case notes, correspondence with the police and the Council’s letters to Ms X support that view. Ms X believes her evidence was largely dismissed or misinterpreted. She thinks the Council put too much emphasis on the trespass element of her complaint, to the detriment of her allegations of abusive behaviour and criminal damage.
  3. However, it was open to the Council to decide how to interpret her complaint. It decided the allegations of trespass were key to the matter. There was clearly a dispute about who owned and/or who could use the land in question. The Council considered whether it could properly apply ASB laws to the situation but decided it could not. I am satisfied this is a decision the Council has taken on its own merits and so I cannot interfere with it.
  4. There was however fault in the Council’s communication with Ms X. Although the first response to her was timely, there were failings in what followed. The case officer failed to update Ms X when she closed the case in January 2018 because of a lack of further contact. Ms X reasonably presumed the investigation was continuing. When she asked to for involvement by video call in a meeting between the case officer and her neighbours the following month her request was overlooked.
  5. The case officer decided after the February 2018 meeting there were no grounds to continue an ASB investigation. However, there is no evidence she told Ms X this, even though she was the main complainant. A verbal explanation to Ms X’s neighbours should not have replaced the need to write to Ms X explaining why the case was being closed. This resulted in a clearly frustrated Ms X having to write to the Council on two further occasions until eventually a meeting took place at her house.
  6. More effort should have been made contact Ms X and explain to her properly the fact there would be no ongoing investigation. Even though there were difficulties contacting her, the Council should have written to her sooner setting out its position. It took until Ms X formally complained for the Council to suggest she take civil action against the alleged perpetrators if she felt they were trespassing on her land. The failure to give this advice sooner was also fault.
  7. The letter sent to both parties when it closed the case offered basic advice about the avoiding confrontation with one another. Ms X suggests this advice went against her rights as the landowner to confront trespassers. I disagree. The advice did nothing to stop Ms X asserting her rights, if she believed she had them. It simply reflected the Council’s view it was not for it to decide who the legal owner or user of the land was.
  8. The Council’s handling of Ms X’s Stage 1 complaint was fault. The Council should have replied within 10 working days but in fact took nearly four months. This was an unacceptable delay, especially as Ms X’s points of complaint were directly related to the conduct of an investigation the Council had only just closed.
  9. Ms X also told the Ombudsman she was unhappy the Council did not accept her recommendations about how it should improve its service to her and others going forward. I however am satisfied it provided enough explanation by its response. The Council’s refusal to accept Ms X’s recommendations is not fault.
  10. I have identified areas of fault in the Council’s actions in this case relating to communication with Ms X and its handling of her Stage 1 complaint. I conclude this fault caused Ms X a significant personal injustice, in the form of frustration and putting her to the time and trouble of having to consistently chase the Council. I will recommend a remedy for this below.

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Agreed action

  1. By 20 October 2019, the Council has agreed to write to Ms X to apologise for its failure to properly explain its approach and decisions between January and July 2018, and for the long delay in its Stage 1 complaint response. It will also pay her a financial remedy of £200 in recognition of the time and trouble and frustration caused by this.
  2. Also by 20 October 2019, the Council has agreed to produce an anonymised case study highlighting the communication faults in this case and circulate it to all officers in the ASB team with key learning points they should take from it.
  3. The Council should write to the Ombudsman when it has completed these actions.

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Final decision

  1. Although the Council’s overall decision on Ms X’s ASB complaint was an exercise of its professional judgement, the way it communicated its actions and a significant delay in investigating her later complaint were fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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