Summary: There is no evidence of fault with how the Council responded, after it received a report that Ms C’s garden was attracting foxes. However, the Council was at fault in how it dealt with her complaint. It has offered her a suitable remedy to reflect the time and trouble she went to because of this fault.

The complaint

1. The complaint, whom I shall refer to as Ms C, complains about action the Council took when it received a report that Ms C’s property had been vacant for years and was attracting foxes.
2. Ms C says:
• The Council acted unreasonably when threating enforcement action over the condition of her garden.
• The Council acted unreasonably when threatening to issue an Empty Dwelling Management Order.
• The Council delayed responding to her complaints.
• The Council’s response to her subject access requests were not provided in a usable format.

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What I have investigated

3. I have investigated Ms C’s complaint about the contents of the letter sent by the Council and how it managed her complaints about this matter.

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The Ombudsman’s role and powers

4. 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)

We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

5. 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

6. As part of the investigation, I have:
• considered the complaint received from Ms C; and
• reviewed and considered information received from the Council; and
• considered any relevant law and guidance; and
• communicated with Ms C about her complaint.
7. Sent a draft version of this document to both parties and invited their comments.

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What I found

Legislation & policy

8. The Anti-social behaviour, Crime and Policing Act 2014 allows Councils to take enforcement action in respect of conduct or behaviour that has a persistent detrimental effect on people in a locality. They can require someone to stop doing or start doing things or take reasonable steps to take specific results or objectives.
9. The Council’s enforcement policy sets out how it will make independent fair and objective enforcement decisions.
10. The policy explains that the Council has a number of options it can take, dependent on factors such as the seriousness of compliance failure & the risks involved. These options include:
• No action
• Informal advice or action
• The issuing of fixed penalty notices
• Prosecution
11. The Council’s Empty Property Strategy sets out how it will bring empty properties back into use. The options available to it include:
• Enforced sale
• Compulsory purchase
• Empty Dwelling Management Order (EDMO)
12. An EDMO allows the Council to take direct management of an empty property, to bring it up to a liveable standard and to collect rent on the property.

What happened

13. Ms C owns a property which has been vacant for a number of years, as she lives with her mother whom she provides support for.
14. In August 2017, the Council received a report from one of Ms C’s neighbours regarding Ms C’s garden. The Council say an officer from its Empty Property Team, visited the property and saw the rear garden was overgrown. The same officer says he had been assisting Ms C in trying to get the property back into use for a number of years.
15. The Council wrote to Ms C about the matter. The letter included the report which said her garden was ‘running alive with foxes’ which caused problems for other residents as the foxes were opening the locks on food bins. It said Ms C should address the issues, so the Council do not have to consider enforcement action.
16. The letter also said if the property continued to remain unoccupied, the Council would consider further action with may include issuing an Empty Dwelling Management Order (EDMO).
17. In August 2017, Ms C complained to the Council’s Environmental Services Team. She said the Council should not have threatened enforcement action regarding the issue of foxes, because it had no power to do so, because foxes are feral animals which she has no control over. Mrs C also said the Council’s threat to serve an EDMO was premature and heavy handed.
18. The Council say that following this complaint, a second officer visited Ms C’s property and noted that the garden had been recently cleared of vegetation.
19. The Council said that, while Ms C was correct that the Council had no powers to take enforcement action to remove foxes. The Anti-Social Behaviour and Policing Act 2014 did allow it to take enforcement action to require residents to maintain their land. The Council acknowledge the garden had since been cleared, and thanked Ms C for doing this.
20. In relation to the EDMO, the Council accepted Ms C’s point that these are rarely used, but said it was an option that the Council could continue and encouraged Ms C to continue to work with it.
21. Ms C responded. She said her garden was not overgrown, and she has no control over feral animals. Ms C said the Council had not been in contact with her for a number of years about her empty property, so it was not appropriate to threaten to issue an EDMO.
22. The Council said it had followed the Councils enforcement policies when issuing the letter but acknowledged that its tone could have been less aggressive in the letter, and that this had been discussed with the author. The Council apologised if this caused her distress and for how it informed her of the reports from her neighbours.
23. In December 2017, Ms C remained dissatisfied with the Council’s response and requested her complaint be progressed.
24. It became apparent that the Environmental Services Team had not processed Ms C’s complaint through its official two stage complaints process. Therefore, Ms C’s complaint was responded to at stage one of that process.
25. Ms C did not receive a stage one response until March 2018 and asked this to be progressed to stage two. A stage two response was not sent until November 2018.
26. In its stage two response, the Council apologised for the delays in dealing with Ms C’s complaint. However, concluded that the issues Ms C raised had been addressed in their responses to her.

Analysis

27. Ms C complains about the contents of a letter the Council sent, after is received reports of fox’s in her garden.
28. The Council has a duty to respond to reports of anti-social behaviour, which can include residents failing to maintain their garden. Although the report did not specifically refer to Ms C’s garden being overgrown, the Council’s officer attended her property and considered it to be so.
29. Its decision to address the issue of the overgrown garden by letter is one it was entitled to make. I am therefore unable to find fault with this decision.
30. The Council has a policy of bringing empty properties back into use and can use a range of options to achieve this, including the issuing of an EDMO. Ms C’s property has been vacant for a long period of time, I therefore do not find fault with the Council including this in its letter.
31. I do consider that the tone of the letter is abrupt and could therefore be worded better. The Council did apologise for the tone and how it informed her of the reports and apologised for any distress caused. It also confirmed the author had been spoken to about this. I consider this to be an appropriate response and therefore do not propose any further recommendations regarding this.
32. The Council accept that errors were made in its complaints handling, which led to delays and apologised for Ms C for this.
33. However, having considered that the Council took over a year to deal with Ms C’s complaint I consider that a financial remedy, to reflect the time and trouble Ms C has been to, would also have been appropriate.
34. The Ombudsman’s remedy guidance explains that when a complainant has been to significant time and trouble pursuing their complaint, we recommend payments of between £100 to £300, which should reflect the level of difficulty experience by the complainant.
35. Having considered the delays in providing responses to Ms C’s complaint, I have decided that a time and trouble payment of £150 is suitable in this case.

Agreed action

36. The Council has agreed to offer to pay Ms C £150 to reflect the time and trouble she went to pursuing her complaint.

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Final decision

37. I have concluded my investigation on the basis that there was fault in how the Council dealt with Ms C’s complaint.

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Parts of the complaint that I did not investigate

38. I have not investigated matters relating to the Council’s responses to Ms C’s subject access requests. The ICO are better placed to deal with this issue.

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Investigator's decision on behalf of the Ombudsman