Cheshire East Council (20 009 360)

Category : Environment and regulation > Antisocial behaviour

Decision : Upheld

Decision date : 14 Jul 2021

The Ombudsman's final decision:

Summary: The Council is not at fault in how it dealt with two complaints of anti-social behaviour. The Council is at fault in how it dealt with Mr X and Ms Y’s third complaint about a different neighbour. The Council has agreed to apologise and pay Mr X and Ms Y £500. The Council has already taken action to improve its service.

The complaint

  1. Mr X and Ms Y complain the Council failed properly to act on their reports of Anti-Social Behaviour (ASB) and noise nuisance.
  2. Mr X and Ms Y say they have been to extensive time and trouble keeping diaries of the incidents and reporting to the Council. They say the Council’s inaction caused them avoidable distress.

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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 spoke to Mr X and Ms Y about the complaint.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Anti-social behaviour

  1. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence, and may result in a fine or a fixed penalty notice.
  2. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.
  3. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance. Issue of a CPN does not affect the council’s obligation to serve an abatement notice under Part 3 of the Environmental Protection Act 1990, where the relevant test is met.

What happened

  1. The Council had three separate ASB complaints from Mr X and Ms Y. I will set out what happened in each case in turn.

Case 1

  1. In 2018, Mr X and Ms Y complained to the Council about noise from their immediate neighbour. I shall refer to this as Property B.
  2. The Council liaised with the neighbour, the landlord, and other relevant services, including the police and social care.
  3. In February 2019, Mr X said that although not perfect, things had improved, and he was happy to close the case.

Case 2

  1. In August 2019, Mr X and Ms Y reported ASB and noise from the new tenants of Property B. The Council asked Mr X to complete diary sheets of instances of ASB, which he did. He also reported his concerns to the police.
  2. The Council referred Mr X and Ms Y for mediation with the tenants.
  3. The Council’s Environmental Health team were also investigating whether there was a statutory noise nuisance. It offered to install Noise Monitoring Equipment. However, Mr X and Ms Y, on the advice of the ASB Officer, chose to delay this to give the mediation a chance.
  4. The mediation service met with Mr X and Ms Y and told them their case wasn’t suitable for mediation at that time.
  5. The Council’s Environmental Health team installed monitoring equipment to investigate if there was a statutory nuisance in November. However, at this point, the tenants were due to leave the property in December and so Mr X did not pursue the matter.
  6. The Council sent Ms Y emails on 1, 15, and 30 October. Ms Y did not respond. On this basis, the Council closed the case for lack of contact.
  7. Mr X says they were in contact with the police about ongoing issues throughout this period. He says the Council led them to believe that as it shared information with the police, he did not need to contact both services separately.
  8. The Council’s website says it works in partnership with the police to address ASB. The Council’s records show that the ASB Officer liaised closely with the police throughout.
  9. The tenants at Property B moved out in December 2019. The Council says this is earlier than it would have been able to take any more formal action, such as issuing a CPN.

Case 3

  1. In December 2019, Mr X and Ms Y started to report ASB and noise from neighbours at a different property, which I shall refer to as Property C.
  2. Mr X’s primary means of reporting was to the police. As well as noise, Mr X also reported concerns of illegal activity.
  3. The Council says it had very little involvement with this case because it was primarily dealt with by the police. This was due to the nature of the concerns Mr X and Ms Y were reporting with the tenants of Property C. But also because the volume of Mr X’s calls was very high.
  4. The Council asked Mr X to complete diary sheets, which he returned in January 2020.
  5. The Council says it had no contact from Mr X or Ms Y after January until it received the stage one complaint in August. Mr X continued to contact the police regularly, however.
  6. Due to the COVID-19 pandemic, from March to July 2020, the Council directed all contacts about ASB to the police and redeployed its ASB team to deliver other services.
  7. Mr X complained to the Council in August 2020.

My findings

  1. From their perspective, Mr X and Ms Y have experienced ongoing ASB since 2018. However, there were three separate cases, with separate alleged perpetrators.
  2. In those circumstances, it was appropriate for the Council to treat each case as a new complaint and start its process from the beginning. It would not have been fair to the second set of tenants at Property B for the Council to have dealt with them more harshly because of the actions of previous tenants of the same property.
  3. Similarly, Mr X and Ms Y’s complaints about Property C were a new complaint. The Council had to extend the tenants and landlord the same opportunity to address the matter informally as it would in other cases.
  4. In Case 1, the Council’s informal actions were appropriate and Mr X was happy things had improved. There is no fault in how the Council dealt with Case 1.

Case 2

  1. In Case 2, the Council pursued mediation and investigated whether there was a statutory noise nuisance. The Council’s records show it considered whether to issue a CPN but after liaising with the police, concluded that it did not have enough evidence. The Council decided the issues of harassment and threats of violence were best dealt with by the police.
  2. The tenants of Property B moved out before the noise investigation concluded. Therefore, I find no fault in how the Council investigated whether there was a statutory noise nuisance.
  3. The ASB team closed the case after it contacted Ms Y three times without response. I understand Mr X and Ms Y’s view that as they continued to contact the police, the ASB team should have kept their case open. However, the Officer’s email to Ms Y on 30 October 2019 specifically states that the Council will close the case if Ms Y did not get in touch. In those circumstances, I consider Mr X and Ms Y had the opportunity to keep their ASB case open and it was their inaction which resulted in it being closed.
  4. Therefore, I find no fault in how the Council dealt with Case 2.

Case 3

  1. The Council’s involvement in Case 3 was limited. It says this was because:
    • the police took the lead in the matter; and
    • it was unable to provide a service for three months due to the impact of the Covid-19 pandemic.
  2. The Council’s records show that due to the nature and volume of Mr X’s calls to the police about Property C, the police decided to manage the case through its Problem Oriented Policing (POP) team. The actions of this team are not within the Ombudsman’s jurisdiction.
  3. The Council says it closed Case 3 in March 2020. However, its records do not show that it closed the case. The Officer’s notes from March say that the Council has “not had any dealings with this case at all because the POP team have been dealing with it” and that Mr X and Ms Y “have not answered any of my emails so there was nothing for me to work on.”
  4. However, there is no evidence in the notes to show that the Council had contacted Mr X or Ms Y since late January. The same note from March goes on to say that the POP team advised that Mr X and Ms Y continued to report ASB to the police on an almost daily basis. It says “there is very little the police can do”.
  5. In that situation, the Council should have considered whether to act under its own powers. There is no evidence it did so. This is fault. It may be that this evidence is contained in the police records, to which I have not had access as part of this investigation. However, it is the Council’s decision making that is the subject of this complaint. The Council should make sure its own records contain enough information to show how it reached a decision.
  6. Mr X returned the completed diary sheets in January 2020. The diary sheet says the Council “guarantee to keep you informed of progress that has or has not been made as a result of the submission of your information.” It did not keep Mr X and Ms Y updated. It did not close the case, and inform Mr X and Ms Y of the outcome. Instead, it allowed the matter to drift until the tenant moved out in June 2020. This is fault.
  7. I cannot say whether the Council would have decided to take formal action, such as issuing a CPN, had it properly considered whether to do so. This uncertainty is an injustice to Mr X and Ms Y. Mr X and Ms Y went to extensive time and trouble completing the diary sheets as requested. The Council’s failure to meet its “guarantee” meant Mr X and Ms Y felt this had been wasted effort. This is an injustice to Mr X and Ms Y.
  8. If the Council decided the police were better placed to deal with the matter entirely, it should have recorded this decision and communicated it clearly to Mr X and Ms Y. It did not. As a result, although it appears the Council had left matters to the police, Mr X and Ms Y did not know this. This increased their sense of frustration at perceived inaction by the Council. This was avoidable, and is an injustice to Mr X and Ms Y.
  9. The ASB officer contacted Environmental Health in January to ask if it had an open case regarding noise from Property C. It did not. At this point, Environmental Health should have investigated whether there was a statutory noise nuisance. Instead, it did not do this until Mr X contacted the service himself in late February. This is a delay of one month, and is fault.
  10. The Council closed the noise complaint because Mr X did not return the diary sheets it asked him to complete. However, Mr X had already submitted diary sheets to the ASB team. Environmental Health should have used these as the basis to decide whether to investigate, instead of asking Mr X to go to additional time and trouble. This is fault.
  11. Mr X and Ms Y cannot know whether the Council would have found there was a statutory nuisance had it investigated. This uncertainty is an injustice to Mr X and Ms Y.

Mental health

  1. Mr X says he was made to feel as though rather than taking his volume of contact to be an indication of the scale of the problem, the Council instead assumed that he was “obsessive” and that his own mental ill-health was the source of the problem. Mr X says he feels as though the Council saw his mental health as an explanation for the situation, instead of a symptom of it.
  2. The Council’s records show that both the ASB and Environmental Health officers expressed concerns about Mr X’s mental well-being. However, Ms Y was also reporting problems and concerns and supported Mr X’s version of events. Although Mr X was usually the one to contact the police, it was mostly Ms Y who communicated with the Council about the complaint.
  3. At one point, the Council records a concern about the “level of detail” included in Mr X’s diary sheets. However, the incident log asks for specific details. Similarly, the Council at various times instructed Mr X to contact the police outside office hours to report issues. However, the Council then cites the volume of his calls to the police as being of concern.
  4. Mr X was reporting suspected drug taking at Property C. The Council’s records show it had independent corroboration of at least some drug use at Property C. The Council therefore had evidence that Mr X and Ms Y’s complaint was not baseless.
  5. I cannot say whether Mr X’s mental health was a factor in the way he responded to and reported issues with his neighbours. However, the Council’s records do show an attitude towards Mr X’s reporting, particularly in Case 3, that indicates an assumption that his mental health is a relevant factor.
  6. There is no evidence the Council discussed the matter with Ms Y, who does not have a diagnosed mental illness, before concluding that Mr X’s mental health was affecting his sensitivity to issues with his neighbours. The Council did, however, check its Adult Social Care database “for any mental health involvement with [Ms Y]”. It found none.
  7. The Council treated each new case reported by Mr X afresh. It should have dealt with him the same way in Case 3 as it did in Case 1, unless there was good reason not to. If there was good reason not to, the Council should have recorded this clearly. It did not do so. Instead, its records indicate that the Council approached Case 3 based on assumptions about Mr X it drew from cases 1 and 2, without weighing all the evidence. This is fault.
  8. Mr X was aware of this, and he found it distressing. This is an injustice to Mr X.

Covid-19

  1. The Council closed its ASB service from March to July 2020 and redeployed its ASB officers to deal with the impact of the Covid-19 pandemic. It directed all contact to the police during this time.
  2. The Ombudsman recognises that the Covid-19 pandemic placed additional burdens on councils and that many councils had to change services and redeploy staff. However, the Council also has a statutory duty to “do all it reasonably can to prevent” anti-social behaviour. (Crime and Disorder Act 1998, Section 17(1))
  3. In the circumstances, I do not consider that directing callers to the police meets this duty. This is fault. However, since Mr X was already reporting his concerns directly to the police, this fault did not cause him an injustice.

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Agreed action

  1. To remedy the injustice to Mr X and Ms Y from the faults I have identified, the Council has agreed to:
    • Apologise to Mr X and Ms Y in writing
    • Pay Mr X and Ms Y £500 in recognition of their avoidable uncertainty, distress and time and trouble.
  2. The Council should take this action within four weeks of my final decision.
  3. When we find fault causing injustice, the Ombudsman can recommend service improvements to make sure the same fault does not affect other people in future. In this case, the Council has already taken action to improve its services. This includes:
    • Improved its officers’ access to IT systems to support good case management and record keeping.
    • Produced new policies which will “outline the standards that members of the public…will expect from the Team”.
    • Provided training to relevant staff about the new policies and what is expected in terms of prevention, investigation, and record keeping.
    • Provided training to relevant staff on unconscious bias. The Council says staff have requested further training about mental health and best practice, which it will provide.
    • Set up a monthly meeting between the ASB and Environmental Protection teams to share information on joint cases and share good practice.
  4. This is in line with the recommendations I would have made and should improve the Council’s service.

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Final decision

  1. I have completed my investigation. There is some fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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