Summary: Mr X complained the Council issued him with a Community Protection Warning for filming his neighbours. Mr X complained this Community Protection Warning shows on a Disclosure and Barring Service check. Mr X says the Council issuing a Community Protection Warning on him was distressing and frustrating since he was the victim of harassment from his neighbours. The Ombudsman does not find fault with the Council for issuing Mr X with a Community Protection Warning.

The complaint

1. Mr X complained the Council issued him with a Community Protection Warning (CPW) for filming his neighbours. Mr X says this is despite the Council advising him to get evidence of his neighbours’ harassment.
2. Mr X complained this CPW shows on a Disclosure and Barring Service (DBS) check. Mr X says the Council issuing a CPW on him was distressing and frustrating since he was the victims of harassment from his neighbours.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint about police actions. (Local Government Act 1974, Schedule 5, paragraph 2, as amended)
6. 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

7. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X and the Council provided comments on my draft decision. I considered both Mr X’s and the Council’s comments before making my final decision.

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What I found

Anti-Social Behaviour

9. The Crime and Disorder Act 1998 defines anti-social behaviour. The Act does not identify individual anti-social actions. It says that any action that has caused or was likely to cause harassment, alarm or distress to any other person outside their own household could be considered anti-social behaviour.

Council Policy on Community Protection Notices (CPNs)

10. Before a council issues a CPN it must provide a written warning to the person, this is a Community Protection Warning (CPW). A CPW must tell the person if they do no stop their anti-social behaviour the Council could issue a CPN.
11. A CPW must detail the anti-social behaviour or conduct that must stop. The CPW must have a set timescale for when action must stop and for review. There is no appeal process for a CPW.
12. The Council issues a CPN when it considers the conduct of an individual or organisation is:
• Having a detrimental effect on the quality of life of those in the area.
• Persistent or continuing in nature.
• Unreasonable.
• In breach of a previously issued CPW.
13. Failure to follow a CPN is a criminal offence. Conviction for breach of CPN could result in a fixed penalty notice, remedial action or orders, or seizure of items or equipment. A person can appeal a CPN through the Magistrates court.

Background

14. Following a series of complaints by Mr X about his neighbours, the Council and police issued an Acceptable Behaviour Contract in March 2019 to both Mr X and his neighbours.
15. Mr X’s contract said he should not have any contact with his neighbours. It also said Mr X should not use offensive gestures to his neighbours and to only use CCTV in line with the Information Commissioners Office (ICO) guidelines.
16. Mr X complained to the Council about his neighbours filming him on his property alongside complaints of noise, harassment and threats after March 2019. The Council issued Mr X’s neighbours with a CPW in June 2019. This CPW included a provision which required Mr X’s neighbours not to film Mr X.

What Happened

17. Mr X contacted the Council and police on 25 July 2019 to ask what evidence he should gather to show his neighbours were not acting in line with their CPW. The police advised Mr X he would need to provide independent evidence such as “video evidence”.
18. Mr X complained to both the Council and police about his neighbours not acting in line with the CPW. The Council invited Mr X to mediation with his neighbours on 14 October 2019. The Council also asked Mr X to provide evidence of his neighbours not acting in line with the CPW. The Council advised it needed “conclusive evidence” of Mr X’s neighbours “shouting at you or being verbally aggressive” before it could issue a Community Protection Notice (CPN).
19. Mr X made further noise nuisance complaints to the Council on 28 October 2019, 2 January 2020 and 4 January 2020. The Council did not consider the evidence provided was enough.
20. Mr X filmed his neighbours on 8 February 2020 while his neighbours were in their property. Mr X says his neighbours were shouting and making offensive gestures towards him. Mr X’s neighbours complained to the Council about Mr X filming them on their property.
21. The Council and the police invited Mr X to a meeting to discuss him filming his neighbours. The Council advised Mr X it would issue him with a CPW on 24 February 2020. Mr X objected to this.
22. The Council wrote to Mr X to explain why it was issuing him with a CPW on 6 March 2020. The Council said:
• People had a right to privacy in their own homes and filming someone in their own home without permission is an intrusion of this privacy.
• Mr X’s neighbours complained about Mr X filming them while they were in their property and provided evidence to corroborate this.
• It had issued a CPW on Mr X’s neighbours for filming onto Mr X’s property and must treat his neighbour’s complaint about the same issue consistently.
• It had not received evidence Mr X’s neighbours had acted out of line of their CPW.
• Mr X could record sound of abuse from neighbours but not video footage into his neighbour’s property.
• A CPW does not show up on a DBS check and is only a warning.
23. The Council issued Mr X with a CPW on 9 March 2020.
24. Mr X complained to the Council on 16 April 2020 about the CPW. Mr X said the Council did not advise how he should correctly gather evidence and gave misleading advice about what evidence to get previously.
25. The Council provided its Stage 1 response on 3 June 2020. The Council said it had provided verbal advice about recording of specific incidents and when to use visual recordings for evidence gathering. The Council said it issued the CPW in line with its policies.
26. Mr X appealed the Stage 1 response on 4 June 2020. Mr X asked for an independent review and disputed receiving guidance on how to collect evidence other than how to position CCTV cameras.
27. The Council provided its Stage 2 response on 23 June 2020. The Council reiterated that it had issued the CPW in line with its policies. Mr X complained to the Ombudsman.

Analysis

28. Mr X complained the Council issued him with a CPW for filming his neighbours in their property. Mr X complained this CPW was unfair because he was following council and police guidance to get evidence of his neighbours not acting in line with their CPW.

Evidence Gathering

29. Part of the CPW issued to Mr X’s neighbours in June 2019 included a provision which required them to stop filming Mr X on his property. This was on the back of Mr X’s complaint. Mr X would have been aware that filming someone else on their property was anti-social behaviour.
30. However, the Council says it provided Mr X with information and advice about acceptable filming. The evidence provided by the Council specifically refers to CCTV operation and not to general filming. There is no evidence the Council provided Mr X with suitable guidance about filming other people on their properties.
31. When Mr X sought advice about gathering evidence to show his neighbours were not acting in line with their CPW, the Council said it needed “conclusive evidence”. This advice is vague and does not tell Mr X about the rules surrounding filming a person in their property. But, as noted in paragraph 29, Mr X should have known that filming someone else in their property constituted anti-social behaviour.
32. The information the Council provided to Mr X was unspecific and potentially misleading. This potentially led Mr X to believe he should film his neighbours not acting in line with the CPW even while on their own property. The Council should apologise to Mr X for providing unclear advice and guidance.
33. While the advice and guidance from the Council was unclear, this would not invalidate a CPW if the Council issued a CPW for the correct reasons.
34. The Police told Mr X to get “video evidence” to show his neighbours were not acting in line with their CPW. However, the Ombudsman cannot investigate complaints about the Police. The Ombudsman can also not require any action from the Police.

Issuing the CPW

35. The Council has provided evidence of Mr X filming his neighbours while his neighbours were inside their property. There is little ambiguity about this evidence.
36. The Council decided Mr X filming his neighbours was anti-social behaviour which had a detrimental effect on the quality of life of his neighbours. The Council said this behaviour invaded his neighbour’s privacy and caused alarm.
37. Because the Council considered Mr X’s actions met the criteria for anti-social behaviour in line with its policy and the Crime and Disorder Act, it issued a CPW to Mr X. The Council was entitled to make this decision.
38. The Council has issued the CPW to Mr X in line with its policy. It is not for the Ombudsman to question the merits of a decision when the Council made the decision in line with its policy and relevant legislation. I do not find fault with the Council.
39. Even if I did find fault with the Council, I would not find this matter has caused Mr X an injustice. Issuing a person with a CPW does not a have material impact on a person. This is simply a warning not to continue any further anti-social behaviour of the same nature.
40. A CPW also does not appear on a DBS check. Only the criminal offence of breaching a CPN would appear on a person’s DBS.

Agreed action

41. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X for unspecific and potentially misleading information provided about how Mr X should get evidence of his neighbours not acting in line with the Community Protection Warning.

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Final decision

42. There was fault by the Council. This did not lead to a significant injustice to Mr X. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman