Summary: The Ombudsman found fault by the Council on Mr Y’s complaint about its failure to investigate his reports of his neighbours’ antisocial behaviour. It failed to show evidence of its antisocial behaviour officer’s involvement, whether it considered if any of their behaviour might be actionable, and whether it considered any risk to him. It also failed to offer early mediation or show evidence of contacting other bodies such as the police for information. The agreed action remedies the injustice caused.

The complaint

1. Mr Y complains the Council failed to investigate reports of anti-social behaviour (ASB) by his neighbours: as a result, the neighbours’ behaviour has worsened, which is affecting his quality of life.

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The Ombudsman’s role and powers

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)
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)

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Council’s website: Antisocial behaviour

4. The Council’s website explains ASB is defined in law as behaving in a manner that caused, or is likely to cause, harassment, alarm, and distress to one or more people not of the same household. It can include intimidation and verbal abuse. The Council can send warning letters to perpetrators, for example, and consider the use of Acceptable Behaviour Contracts. Its website states ASB does not include civil disputes between neighbours, such as CCTV usage and coverage, and boundary issues.
5. It will work in partnership with other organisations such as the police, for example.

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Environmental Protection Act 1990

6. It shall be the duty of every local authority to inspect its area from time to time to detect any statutory nuisances which need dealing with. A statutory nuisance includes ‘any accumulation or deposit which is prejudicial to health or a nuisance’. (section 79 (e))
7. Where a local authority is satisfied a statutory nuisance exists or is likely to occur or recur in its area, it shall serve an abatement notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence. (section 80(1))

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Protection from Harassment Act 1997 (as amended)

8. This Act gives protection from harassment which covers the ‘causing alarm or distress’ (section 2) and putting people in fear of violence (section 4). A prosecution requires proof of harassment and evidence the conduct was targeted at an individual and was calculated to alarm or cause distress and was oppressive and unreasonable. Offences under this Act are enforced by the police.

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Antisocial Behaviour, Crime and Policy Act 2014

9. Under this Act, councils have a duty to combat antisocial behaviour. The Act gives them powers to address antisocial behaviour which includes civil injunctions and community protection notices

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How I considered this complaint

10. I considered all the information Mr Y sent, the notes of the telephone conversation he had with a colleague, and the Council’s response to our enquiries. I also sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

11. Mr Y and his partner rent a property from their landlord. They say they have suffered abuse and ASB from their neighbours. The neighbours own the property next door. Despite making reports to the Council about it, they say it failed to properly investigate their concerns or take effective action to stop their neighbours’ behaviour.
12. The neighbours’ behaviour included:

• Placing bagged dog faeces outside their kitchen window in a bin until collection day;
• Obstructing the access to the rear and front to their property with bins and plants. I have seen photographs showing bins placed directly infront of doors, dog faeces in bags left in bins under his window, as well as bags of garden waste;
• Removing Mr Y’s clothes drying in the rear courtyard;
• CCTV cameras pointing at their property;
• Physically assaulting Mr Y; and
• Shouting abuse at him and throwing tennis balls at him.

13. Mr Y claims his calls and correspondence to the Council were ignored and believes the neighbours made false counter-allegations. He is unhappy as no Council officer visited him to discuss the situation, and nor were they ever offered mediation.
14. In its response to his complaint at stage 1 and 2 of its complaints procedure, the Council noted:

• the disagreement between him and the neighbours is about the rights and use of access of the courtyard area to the rear of both properties. The dispute is between Mr Y’s landlord and the neighbours. Most of the courtyard is owned by the neighbours but property deeds grant a right of access to occupiers of Mr Y’s house. It pointed out it cannot comment on the merits of either party’s claim over rights of use of the courtyard or how it should be used;
• correspondence it has seen from the neighbours’ solicitors;
• its ASB team worked closely with the police but civil disputes between neighbours are not considered as antisocial behaviour;
• it received counter-complaints from his neighbours;
• it explained it can investigate reports about statutory nuisance. Having reviewed the evidence, officers spoke to the neighbours about the need to keep waste and recycling covered with lids and put out for collection according to its schedule. Officers decided there was not enough evidence to show statutory nuisance. They also noted Mr Y stores his own bins under his window which weakens any argument he may have about the need for the neighbours’ to relocate their bins because of odours; and
• incidents of ASB need reporting to the police.

15. The evidence shows the following:

2020

• April: I saw copies of emails from Mr Y’s landlord to the neighbours about the legal position of the courtyard and rights of way.
• May: The landlord emailed the Council about the problems Mr Y was experiencing.
• June: The environmental health team acknowledged receipt of the landlord’s report about bins under the kitchen window. The team later contacted Mr Y saying it received a report from the neighbours against them about noise. They were warned and asked to complete odour monitoring sheets. An email later in the month told Mr Y an officer spoke to the neighbours about the bins. The neighbours explained the steps taken to ensure their bins do not smell excessively and noted Mr Y’s bins were also stored under the windows.

The neighbours were happy to discuss locating the bins to the front of the properties and look at a voluntary agreement relocating all bins there. The team later told Mr Y the evidence shows the courtyard is owned by the neighbours, apart from one section. Mr Y’s property has a right of way over part of the courtyard to access the back door. It suggested they contact their landlord for legal advice about their rights over storing bins and drying clothes in the right of way area. It also said they were due mediation but this may have been delayed because of the Covid-19 restrictions.

I have seen evidence sent by the neighbour to the Council about noise from Mr Y.

• July: Mr Y told the Council about the neighbours installing CCTV facing their kitchen window and recording their conversations. The neighbour put bins outside their door and blocked their way when they tried to move them. He contacted the police on 3 occasions but, nothing was done. He also sent the completed odour logs to the environmental health team. The team said the location of the bins is a civil matter and he needed to talk to the landlord about legal options with problems with access. The team could not act about the bin.

I have also seen completed antisocial behaviour incidence logs from the neighbour against Mr Y detailing separate instances. Another log from the neighbour records incidents over a 5-day period. Officers took their own legal advice about the case.

August: Mr Y contacted the Council asking if it had found a way of resolving the situation. The following day an officer from the team replied saying this was a civil dispute. It would not pursue the issue of the bin and nuisance after reviewing the completed logs. Evidence shows both parties could be accused of antisocial behaviour/harassment. These types of incidents needed reporting to the police.

16. In January 2021, the Council issued a risk assessment about Covid-19 and site visits. This said physical visits are to be avoided if possible and alternative remote methods of information gathering are to be used. It also pointed out that during the initial lockdown in March 2020, it stopped all visits but maintained telephone and electronic communication until it decided this was impractical and started visiting and installing noise monitoring equipment again. Between July and September, there were several lockdowns

Analysis

17. At the heart of this complaint is a long running dispute between Mr Y’s landlord and the neighbours about ownership, and access rights, of the courtyard. As the Council has already advised Mr Y, this is a civil dispute. As such, he needs to consider getting legal advice about his rights over the rear courtyard. These are for the courts, not the Ombudsman, to decide.
18. I now deal with each complaint in turn:

Antisocial behaviour

19. The Council decided the neighbours’ behaviour complained about was not ASB. This is because the use of CCTV is not viewed as ASB. As already noted, the neighbours’ behaviour is rooted in the dispute about the courtyard. The evidence shows this is a long running dispute which pre-dates Mr Y moving in to the property.
20. What this means is the neighbours’ behaviour complained about, such as moving bins, storage of waste, and removing drying washing for example, could be used as a defence had the Council decided to take formal enforcement action against them. The neighbours could simply argue it was not harassment as they were merely asserting their legal rights over their land which Mr Y was interfering with.
21. Not all the neighbours’ behaviour can be viewed this way. For example, the claim of assault is a serious claim. Shouting abuse and throwing tennis balls cannot be defended by claiming they were asserting their legal rights.
22. I found fault on part of this complaint for the following reasons:
1. The Council provided no evidence of any record of the ASB team’s involvement. Nor did it produce any evidence of the liaison it claimed it had with the police.
2. There is no evidence showing whether the Council considered some of the neighbours’ behaviour did, or could, on the balance of probabilities amount to ASB.
3. There is no evidence of the Council carrying out a risk assessment to Mr Y from the neighbours’ behaviour, or at least considering there was no risk.
4. While I accept there were restrictions across the country because of Covid-19, there is nothing to show the Council considered whether mediation was an option in this situation or made any referral for such services. The evidence I have seen suggests both sides might have agreed to mediation. Although I accept the problem with restrictions, online mediation might have been an option, for example.
5. There is no evidence of the Council asking other bodies, such as the police for example, for information about whether it had other reports in the past about the neighbours.
6. I consider these failures amount to fault. I am satisfied the failures caused Mr Y injustice in the form of distress as he has the uncertainty of not knowing whether the Council’s decision on the ASB complaint would have differed but for the fault.

Nuisance: odours

23. I found no fault on this complaint. I am satisfied the Council investigated Mr Y’s reports of odour from the neighbours’ bins under his window. Officers decided there was not enough evidence of a statutory nuisance.
24. In reaching this decision, officers considered evidence at the time which consisted of photographs Mr Y provided. These included one showing 2 plastic bags in a black box he said contained dog faeces. Officers also contacted the neighbour about the claim. They said they kept the box covered with a lid. Officers also took account of Mr Y keeping his own bins under the kitchen window too. Officers took all this evidence in to account when reaching its decision it was unlikely to amount to a statutory nuisance.

Obstruction: access/use

25. Officers considered the reports of obstruction. Having done so, they decided what was alleged was not evidence of ASB in these circumstances. This is because it was all connected to a private dispute between Mr Y and the neighbours about the extent of rights of way over the courtyard and its use. It was not fault for officers to reach this conclusion on these facts.

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Agreed action

26. I considered our guidance on remedies. I also considered the Council receiving counter allegations from the neighbours against Mr Y.
27. The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint:
1. Send Mr Y a written apology for its failure to: show evidence of the antisocial behaviour team’s involvement; show it considered whether some of the behaviour complained about amounted to antisocial behaviour; consider whether there was a risk to him from their neighbours’ behaviour; offer possible early mediation to him and the neighbours; show evidence of it asking other bodies for relevant information; and
2. Promptly offer mediation to Mr Y and his neighbours should it receive further reports of antisocial behaviour.
28. The Council confirmed that as the antisocial behaviour team has been transferred to Public Protection, it has already started updating its procedures and how it records antisocial behaviour complaints. It will provide us with evidence of this when it is complete, and no later than 12 weeks from the date of the final decision.  

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Final decision

29. I found fault on Mr Y’s complaint against the Council. The agreed action remedies any injustice caused.

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Investigator's decision on behalf of the Ombudsman