London Borough of Havering (20 004 228)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 06 Apr 2021

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s decision not to take enforcement action against the site owners, and license holders, of the caravan site she lives in. She says the site owners have not complied with the notices issued by the Council. We find some fault and have made recommendations.

The complaint

  1. Mrs X complains about the Council’s decision not to take enforcement action against the site owners, and license holders, of the caravan site she lives in. She says the site owners have not complied with the notices issued by the Council. She says the Council’s inaction means she lives in unsatisfactory and dangerous living conditions.
  2. Mrs X is represented by Mr P.

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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 with Mr P and considered the information he provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I sent a draft decision to Mr P and the Council and considered their comments.

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What I found

Best practice guidance

  1. Best practice guidance is available for local authorities on the enforcement of a new site licensing regime which was brought in by the Mobile Homes Act 2013.
  2. The guidance highlights the legislation provided local authorities with the power to intervene where they consider there has been a breach of a site licence condition, based on a risk of harm. It notes local authorities have powers to serve compliance notices on the site operator, where a breach of site licence condition has occurred.
  3. The guidance noted local authority should be aware that unforeseen matters may arise during remedial work. The local authority should give the site operator the opportunity to re-engage with the local authority and agree an alternative course of action. Further, if necessary, giving an extension of the time to complete the works.
  4. The guidance states that failure to comply with a compliance notice within the period specified in the notice is an offence.

Council’s operational guidance

  1. The Council does not have an enforcement policy in place for enforcement of site licensing. It does have an operational document which provides some advice to staff to follow.
  2. The Council’s operational guidance makes similar points to the best practice guidance. It highlights the Council can serve a compliance notice where there are one or more breaches of site licence conditions. It also highlights that failure to comply with a compliance notice is an offence for which the Council can prosecute for.

What happened

  1. Mrs X lives in a caravan site, which is privately owned. The site owners of caravan site are also the license holders. The site license issued to the site owners have conditions attached.
  2. In January 2019, the Council issued a compliance notice to the site owners. The compliance notice listed eight areas where the owners were failing to comply with the licence conditions.
  3. The notice set out works for the site owners to complete by the end of April 2019 to ensure compliance with the licence conditions.
  4. In March 2019, the Council completed a site inspection to check the progress of the works outlined in the compliance notice. The officer noted the site owner had completed two out of the eight listed works. The officer also noted one was partially completed. All other items were outstanding.
  5. At the beginning of May 2019, Mrs X told the Council the works were still outstanding and the deadline for completion had expired. The case was also transferred to a new officer.
  6. At the end of May 2019, a Council officer visited the site and noted none of the outstanding work required by the first compliance notice had been completed.
  7. In September 2019, following a site visit, the Council issued a second compliance notice to the site owner. The notice required the removal and pruning of trees, the removal of offcut branches, and for the site owner to consult a tree specialist regarding removal of dead trees and overgrowth on the site. The deadline for completing all works was November 2019.
  8. The Council said it issued the second compliance notice because there were delays in the handling of the case. This meant the time limit to take enforcement action had passed.
  9. In December 2019, the Council visited the site. The officer’s notes record the site owner had completed all matters from the second compliance notice apart from the report by a tree expert. The notes also reflect the officer’s view that while the site owner had completed the works out of time, the site owner had a reasonable excuse for the delay. The officer noted it was not in the public interest to prosecute.
  10. In February 2020, the Council attended an inspection by the site owner’s tree expert. The tree expert report produced his report at the end of April 2020. It noted what works had been completed and that further works had been delayed by the lockdown imposed by the Covid-19 pandemic.
  11. In response to our enquiries, the Council said it completed a further site visit in January 2021. During the site visit, the Council confirmed the site owner had completed a further three items listed in the first compliance notice. This meant there were three items outstanding which had not been completed.
  12. The Council said the risk posed by the works uncompleted did not contribute to a significant hazard and so it has chosen not to pursue formal enforcement. The Council did not provide evidence of how it reached this decision or what information it considered.

Analysis

  1. The law states that failure to comply with a compliance notice within the period specified in the notice is an offence. It should be noted that issuing a compliance notice is an enforcement action itself.
  2. However, there is no guidance as to when councils should prosecute for failure to comply with a compliance notice within the time frame given. Therefore, it is for the Council to decide when to prosecute.
  3. The Council did not provide a contemporaneous record of all site visits completed between 2019 and 2020. This meant there was a lack of evidence of when the site owner completed the works. This in turn hampered the Council’s ability to maintain effective oversight of its enforcement action.
  4. This is supported by the fact the Council did not confirm completion of three listed works set out in the first compliance notice until January 2021. This was despite the deadline for compliance with the notice being the end of April 2019.
  5. Therefore, the evidence suggests there was poor oversight by the Council on following up with its compliance notice. This is fault.
  6. The Council confirmed that out of eight areas that needed work to ensure compliance with the site licence conditions, it was satisfied the site owner had completed five.
  7. The Council has no enforcement policy in place which sets out what considerations the Council should have when deciding what enforcement action, including prosecution, to take. The Council’s operational document also does not provide any real guidance about what the Council should consider when deciding whether to pursue a prosecution. In practice, this means it is for the officers to exercise their professional judgment to decide whether to prosecute a license holder for failing to comply with a compliance notice.
  8. The Council explained it did not prosecute the site owner because the risks posed by the outstanding work did not contribute to a significant hazard. However, the Council also said the time limit to take enforcement action on the first compliance notice had lapsed due to delays in the case handling. Therefore, there is some confusion about why the Council has decided not to prosecute the license holder.
  9. The Council has not provided any evidence of what considerations it made before it decided the risks posed did not contribute to a significant hazard. Therefore, it is not clear how the Council decided the risks posed by the outstanding matters did not contribute to a significant hazard.
  10. The Council has not provided a clear record of its decision making at the time. Instead, the decision not to prosecute appears to be a decision now made because of our investigation. Therefore, there is no evidence the Council properly considered whether to prosecute the site owner for failure to comply with the compliance notice when the deadline to complete the works passed. This is fault.
  11. As highlighted above, the Council did not maintain effective oversight of when works had been completed by the site owner. Therefore, it is unlikely, on balance, the Council would have decided to prosecute the site owner for failure to comply with the first notice. This is because it had not gathered the evidence necessary to demonstrate the offence at the time.
  12. Nevertheless, while I am satisfied the outcome is unlikely to be different, I consider the faults identified caused Mrs X some injustice. This is because she was caused frustration by the Council’s failure to effectively manage its enforcement action against the site owner. There is also uncertainty as I cannot say what would have happened had the Council effectively maintained its oversight after issuing the first compliance notice.
  13. The evidence shows the Council is satisfied the site owner had completed all actions set out within the second compliance notice. The records note the officer had considered whether to prosecute the site owner for not complying with the notice within the timeframe set. However, the officer decided the site owner was likely to have a reasonable defence for the delay and so it was not in the public interest to prosecute.
  14. Therefore, this is the officer’s professional judgment. The evidence shows the decision was made properly at the time. Therefore, I cannot find fault with the decision itself.

Agreed action

  1. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
    • Apologise to Mrs X for the injustice caused by the faults identified.
    • Pay Mrs X £100 to recognise the frustration and uncertainty caused by the faults identified.
  2. The Council should complete the above within four weeks of the final decision.
    • Complete an inspection of the caravan site and consider if there are any outstanding matters where the site owner is failing to comply with the licence conditions. If the Council identifies any matters, the Council should consider whether to take enforcement action. If the Council decides to introduce an enforcement policy, the Council should ensure its decisions are in line with the policy. If the Council decides not to take enforcement action, it should set out clearly its reasons for why.
    • Review the Council’s process for management of compliance notices. The Council should consider whether any changes to its process and procedures are needed to ensure the Council can maintain effective oversight of its enforcement actions. In particular, checking whether licence holders are fulfilling the requirements of a compliance notice within the time period specified.
    • Consider the need to implement an enforcement policy to provide clarity and further guidance to operational staff about the circumstances in which the Council should prosecute for failure to comply with a compliance notice.
  3. The Council should complete its inspection of the caravan site within two months of the final decision. The Council will provide the Ombudsman with an outcome of the inspection. If the Council is satisfied there are no further outstanding matters of non-compliance, it will provide the Ombudsman with evidence of how it considered the matter and how it made its decision.
  4. The Council should provide the Ombudsman with the outcome of its review within four months of the final decision. If the Council has decided to make changes to its process, the Council should provide an action plan setting out the actions the Council will take.
  5. The Council should provide the Ombudsman with its decision on whether to implement an enforcement policy within four months of the final decision. If the Council decides not to introduce an enforcement policy, it should set out its reasons why.

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Final decision

  1. I find fault with the Council as it did not maintain effective oversight of its enforcement action. I also find fault with the Council for not giving due consideration to whether to prosecute the licence holder for failure to comply with the first compliance notice within the deadline set. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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