Summary: Mr B complains about the Council’s response to his reports of dog fouling in his neighbours’ yard. The Ombudsman does not find fault with the way the Council investigated the reports or the way it reached its decision not to take action. There was some fault in the Councils complaint handling. The Council agrees actions to remedy the injustice to Mr B.

The complaint

1. Mr B complains about the Council response to his reports of dog fouling in his neighbours back yard. He says the Council:
• refused to acknowledge his evidence;
• handled his complaint inadequately;
• refused to meet with him to discuss his complaint;
• focussed on Mr B rather than his neighbour;
• failed to enforce the notice it issued;
• refused to accept the health risks and ignored its own guidance;
• sided with his neighbour and failed to act independently.
2. Mr B says, as a result of the Council’s fault, both he and his wife have suffered serious health implications. He also says he was unable to use the rooms at the back of his house and the situation had such an impact on his health and wellbeing that he decided to move house.

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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. 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. I spoke to Mr B and considered all the information he provided with his complaint. I made enquires with the Council and considered its response with the below legislation and guidance.
7. Mr B and the Council had the opportunity to comment on my draft decision and I carefully considered all the comments I received.

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What I found

Legislation and guidance

Anti-social Behaviour, Crime and Policing Act (2014)

8. If a complaint has been made about a dog to a council it can issue a Community Protection Notice (CPN). CPNs provide a statutory tool that can be used in cases of irresponsible dog ownership where informal non-statutory methods have proved unsuccessful.
9. A CPN can be issued when the conduct is:
• having a detrimental effect on the quality of life of those in the locality
• persistent or continuing in nature; and
• unreasonable.
10. There is no restriction on the type of behaviour a CPN can deal with, for example it can deal with noise nuisance, rubbish in gardens and littering.
11. Before issuing a CPN, the Council should give a written warning to the perpetrator setting out that if the antisocial behaviour persists a CPN will be issued. The amount of time allowed between the written warning and the issuing of the CPN is to be determined on a case-by-case basis.

The Environmental Protection Act (EPA) (1990)

12. Part 3 imposes a duty on Councils to inspect its area for statutory nuisances and to take reasonable steps to investigate any complaints of statutory nuisance that it receives. The task of detecting statutory nuisances is usually delegated to Environmental Health Officers, who are often made aware of statutory nuisances by complaints from residents.
13. A statutory nuisance can occur when the activity of an individual or business on their own premises unreasonably detracts from another’s enjoyment of their property or causes a risk to public health; and action can be taken by a local authority under the EPA. S79 of the EPA lists 11 categories of statutory nuisance, with three possibly relevant in this matter being:
• any premises in such a state to be prejudicial to health or a nuisance;
• any accumulation or deposit which is prejudicial to health or a nuisance; and
• any animal kept in such a place or manner as to be prejudicial to health or a nuisance.

The Council complaint procedure

14. The Council has a three-stage procedure:
• Stage one- informal complaint. The complainant should receive a written response within ten working days (if it is not possible to respond to the complaint quickly in person or by telephone).
• Stage two- formal complaint. The Council should acknowledge the complaint within two working days. A full written response from the manager of the service should be provided within 10 working days (if this is not possible the complainant should be advised of the progress and when they can expect a reply).
• Stage three- appeal. Appeals should be made to the Managing Director, who will appoint an independent manager to conduct a further investigation. The complaint should be acknowledged within two working days and a full written response provided within ten working days (unless the above conditions apply).

What happened

15. What follows is a brief chronology of key information, it does not contain all the information I reviewed during my investigation. I have used my discretion to go back further than 12 months because this has been an ongoing issue.
16. In 2017 Mr B complained to the Council about his neighbour leaving dog faeces and urine in the back yard. The Council visited the neighbour’s property and issued a Community Protection Notice (CPN) warning letter. There were no further reports and the case was closed. In December 2017 Mr B reported the issue had started again. Between December 2017 and March 2018 Mr B sent a further six emails with photos attached. The Council visited in March but did not observe any mess. It reminded the neighbours of the CPN warning and closed the case in May 2017.
17. In October/ November 2018 the situation between Mr B and his neighbour escalated. Mr B reported more incidents of dog faeces in the yard to both the Council and the Police. There were also other neighbour dispute issues outside the scope of this investigation. The Council spoke and wrote to the neighbours again in October to remind them of the content of the CPN warning letter.
18. In February 2019 Mr B sent more photos to the Council. Mr B was unhappy with the Council’s response and complained. From January to September 2019 Mr B’s complaint went through the Council’s three stage complaint process. During this time the Council made a further six visits but said it found ‘very little evidence’ and was ‘unable to confirm a statutory nuisance’.
19. Mr B remained dissatisfied with the response and complained to the Ombudsman.

My findings

20. I have summarised my findings under the main headings of Mr B’s complaint.

The council refused to acknowledge Mr B’s evidence

21. Mr B says he provided lots of evidence to support his complaint, but the Council ignored this during its investigation. Mr B provided me with copies of his correspondence with the Council.
22. The Council says:

“In order for the Council to escalate actions under Part 4, Chapter 1 of the Anti-social Behaviour, Crime and Policing Act 2014 a certain threshold has to be reached by the perpetrator of problem behaviour. This has to have a detrimental effect on the quality of life of those in the locality; be of a persistent or continuing nature; and be unreasonable.

To date no evidence has been obtained by the Council indicating that this threshold has been reached and as a result the Council is unable to escalate this matter”.

23. The Council did not uphold this part of the complaint at stage three of its process. It said:

“In determining that this section of the complaint is not upheld I must look at the decision-making processes of the Council and whether the decisions reached were fair based on the evidence they were looking at. I do believe that the conclusions reached were possible at the time with the evidence they were considering. The Officers have visited the property on numerous occasions to gather evidence that the Council could then use, however, the visits have not found evidence that crosses the threshold to demonstrate a nuisance in the context of the notice issued and also in the context of other cases that have been dealt with any further”.

24. In its response to my enquiries the Council points out that although the EPA places a duty on local authorities to investigate, it is for the Council to decide whether a statutory nuisance exists.
25. Mr B provided a lot of information to the Council, in the form of regular emails, photos and videos. The Council says it considered all Mr B’s evidence during its decision making but when it conducted its own visits it was unable to establish sufficient evidence of a statutory nuisance.
26. Mr B says the problem was worse at weekends. The Council points out it did not become aware of this until after its stage two complaint response. It responded to this issue in its stage three response. The Council asked Mr B to complete a log to record all incidents over a two-week period.
27. In an email to Mr B in August 2019 the Council told Mr B the officers did not work at the weekend so visits could only take place in the week. In its stage three response it says:

“The complaint is partially upheld. Whilst I do not agree that there has been wholly inadequate handling of your case I do concede that there could have been better consideration of the issues which you have highlighted on a number of occasions pertaining to the issues faced in particular at the weekend. I apologise on behalf of the Council for any inconvenience caused or any distress / upset you may have experienced as a result”.

28. As one of the main issues in contention was the frequency of dog fouling the incident log could have been suggested at an earlier stage. It is possible this information could have informed the Council’s decision about when to conduct site visit. However, on balance I do not think this would have affected the overall view the Council took on what action it could take.

The Council failed to enforce the CPN

29. The Council did not issue a notice, it issued a warning letter. This is an informal stage before issuing a notice.
30. The Council does not think there was sufficient evidence of a statutory nuisance to issue a notice or take any further action. In response to my enquires the Council says:

“There is no statute or precedence to clarify what constitutes what is reasonable for removing dog faeces on private property but the Council does apply informally a threshold of two days, after which it would consider an accumulation of dog faeces beyond two days to be a possible statutory nuisance or a CPN actionable offence. In this particular matter, we never witnessed accumulation of dog faeces which exceeded two days accumulation or more”.

31. In response to my enquires the Council provided case notes of the actions and decision making in this case. This demonstrates the officers consideration of all the evidence, site visits and impact on Mr B.
32. The Council also provided evidence of its complaint investigation, including interviews with relevant officers and research it undertook in reaching its decision about what action, if any, it could and should take.
33. Where there is no fault in the way a decision is reached I cannot question the professional judgement of the officers making the decision.

The Council refused to accept the health issues and ignored its own guidance

34. Mr B says the accumulation of dog faeces and urine in his neighbours back yard caused him, and his wife, significant health issues which required medication.
35. In response to this aspect of the complaint the Council says:

“I am unable to uphold this element of the complaint that the health issues you refer to are as a direct result of faeces being left in the yard next door. I would stress that this does not in any way reject the health issues you refer to or the impact these have on you. Clearly I accept that I am not a medical professional but in examining the evidence available to me I must consider the possibility that the health issues could be as a result of something other than Toxocariasis”.

36. I do not find fault with the Council. I have not seen any evidence from Mr B to link Mr or Mrs B’s health issues to exposure to dog faeces/ urine.
37. The guidance Mr B refers to related to dog fouling in public spaces, which is not relevant for this complaint.

The Council’s complaint handling was inadequate

38. It took eight months for Mr B’s complaint to complete the Council’s three stage process. There were delays at both stage one and stage two.
39. The Council’s stage three response says:

“There are elements of your complaint that Council could have handled better. There are a number of issues which occurred which fall below the standard I would expect to see. Delays occurred at both Stage one and Stage two of the process which were not explained. Therefore I apologise on behalf of the Council for any inconvenience this may have caused you”.

40. The stage three report made the following recommendation:

“That the Head of Regeneration and Housing ensures that any future complaints are dealt with within the timeframes set by the Complaint Policy and that the complainant is notified when this is not possible”.

I asked for evidence it had completed this action. It said:

“… have reinforced this point with my Team Managers in a team meeting, stressing the need to keep to complaint timescales and to keep complainants informed should there be a delay in providing a response. Unfortunately, I have no written record of this”.

41. I find fault with the Council’s complaint handling of this case. The Council failed to meet the timescales set out in its procedure. Stage one was unnecessary in this case and added an extra stage, which took longer than it should have. It was clear Mr B’s complaint was ‘formal’ from the outset and it was not his first expression of dissatisfaction with the Council’s response.
42. The fault caused Mr B unnecessary time and trouble pursuing his complaint and chasing a response from the Council.

Other matters

43. Mr B says the Council focussed on him rather than his neighbour during its handling of this matter. I did not find evidence of this in my investigation.
44. Mrs B says the Council did not act independently and sided with his neighbour. I found no evidence the Council acted with bias or failed to act independently in its investigation or handling of this case.
45. Mr B believes his neighbour knows someone at the Council and used this relationship to obtain information about when Council Officers would be visiting. In response to my enquiries the Council said there are no connections between Mr B’s neighbour and any Council staff. I have no reason to doubt this information and I did not find any evidence to the contrary.

Agreed action

46. Within a month of my decision the Council agrees to:
• Pay Mr B £150 for his time and trouble pursuing his complaint.
47. Within three months of my decision the Council agrees to:
• Remind Environmental Protection Team staff involved in complaints handling of the importance of adhering to the timescales set out at each stage of the procedure.
48. The Council should provide evidence it has carried out the above recommendations.

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Final decision

49. I do not find fault with the Councils decision making and investigation. I find some fault with the Council’s complaint handling. The Council agrees actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman