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Lancaster City Council (20 009 091)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 07 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s handling of anti-social behaviour (ASB) concerns raised by his neighbours about him. The Council was at fault for not handling the ASB concerns in line with statutory guidance and for delay in responding to Mr X’s complaints. The Council agrees to remedy the injustice caused to Mr X by making an apology, payment for time and trouble and reimburses his avoidable legal costs. The Council will also issue a written reminder to all relevant staff about the statutory guidance and good practice set out in recent case law.

The complaint

  1. The complainant, who I have called Mr X, complains about the Council’s handling of anti-social behaviour concerns raised by his neighbours about him. He says the Council issued a Community Protection Notice (CPN) based on false allegations and refused to engage with him when he raised this. Mr X says the Council has refused to explain why it withdrew the CPN just before his appeal hearing at court and has failed to respond to his complaints. Mr X says the Council’s action has caused him and his family extreme distress and anxiety.

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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. 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 have spoken to Mr X and considered the information he has provided in support of his complaint.
  2. I have considered information the Council has provided in response to my enquiries, which includes confidential information I have not detailed in this decision statement. This is because it is about the legal advice the Council has received about this matter. The advice is subject to legal professional privilege the Council has not waived to enable its disclosure.
  3. Mr X 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 have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
  2. For example, they may approach a complaint using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
  3. The 2014 Act introduced six new powers for agencies involved in tackling ASB, one of which is the power to issue community protection notices (CPN).
  4. The Anti-social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers Statutory Guidance for frontline professionals (December 2017) (the Guidance) sets out how the police, councils and social landlords should ensure the powers are used appropriately to provide a proportionate response to specific behaviour causing harm or nuisance in their local areas.
  5. The Guidance provides detailed information on the circumstances when certain measures should be taken to address anti-social behaviour, including Community Protection Notices. It also encourages informal and early intervention to establish clear standards of behaviour to help avoid the need to take formal action where there is no or limited risk of harm to the victim(s). These interventions can include community resolution, mediation, acceptable behaviour contracts/agreements and support or counselling.

Community Protection Notices

  1. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a detrimental effect on the community's quality of life, is persistent and continuing in nature and is unreasonable. The behaviour in question should have a genuinely detrimental effect, rather than just being annoying to justify issuing a CPN.
  2. CPNs require the behaviour to stop and, where appropriate, require the recipient to take specific 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. The courts have also ruled that councils can vary or revoke CPNs, where the recipient has requested this, or where circumstances have changed to warrant such action. This ability is separate to a recipient’s formal right of appeal against the CPN. (Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin))
  3. 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.
  4. An appeal against a CPN may be successful on the following grounds:
  • the behaviour did not take place;
  • the behaviour has not had a detrimental effect on the quality of life of those in the locality;
  • the behaviour was not persistent or continuing;
  • the behaviour was not unreasonable;
  • the individual cannot reasonably be expected to control or affect the behaviour’
  • any of the requirements of the CPN are unreasonable;
  • there is a material defect or error with the CPN; or,
  • the CPN was issued to the wrong person.

Council’s complaint policy

  1. The Council has a two stage internal complaints process. It aims to acknowledge all complaints in five working days and substantively response to stage one and two complaints in 10 working days. The policy says the Council will keep complainants regularly informed where it cannot meet the usual response timescale and will advise when it is likely to provide a full response.
  2. Information about the Council’s complaint procedure is published online and includes information about how to escalate a complaint to us.

What happened

  1. This chronology contains key events and does not describe everything that happened.
  2. Mr X and his family have lived on Street Z since 2000. They have had disputes with some of the other residents on the street over access and parking since then. Since 2007, this has involved these residents making various allegations of anti-social behaviour against Mr X to the police and the Council.
  3. In November 2018, the Council issued a formal warning to Mr X following allegations of him making inappropriate comments towards other residents of Street Z. The warning stated that a Community Protection Notice would be issued to Mr X if his unreasonable behaviour towards his neighbours continued. The Council had to reissue this warning the following month because the original contained errors.
  4. Mr X raised concerns with the Council about the warning, stating his neighbours had made various false allegations about him over the years. Mr X asked the Council for an opportunity to answer the allegations being made before the warning was issued.
  5. The Council issued a further warning to Mr X in May 2019, followed by a CPN issued to him on 19 August 2019. Mr X made an appeal against the CPN on 30 August 2019, which was listed for court hearing on 4 November 2019.
  6. Shortly prior to the court hearing, the Council sought legal advice about the CPN and Mr X’s appeal. The Council decided to withdraw the CPN and notified Mr X’s legal representative of its decision a week before the court hearing. Mr X withdrew his appeal following this. Both parties agreed to pay for their own legal costs.

Mr X’s complaints

  1. Mr X’s legal representative raised concerns about the first CPW on 21 December 2018. They questioned why the Council had not considered the longstanding dispute between some residents and Mr X and why Mr X had not been given the opportunity to respond to the allegations before the CPW was issued. The Council explained there was no right of appeal against a CPW, only against a CPN if this was issued.
  2. Mr X agreed to a meeting the Council offered after it issued the CPW in May 2019, where it said it would show Mr X the evidence supporting its action. It appears the Council did not act upon Mr X’s further requests for this meeting in June and July 2019. To date, Mr X says he has not had the opportunity to meet with the Council to discuss the issues and concerns raised by some of his neighbours.
  3. Mr X made a formal complaint about the Council’s handling on 8 July 2019. He complained about:
      1. the ASB Officer’s conduct when they attended his home in May 2019;
      2. the Council’s failure to meet with him as promised;
      3. the Council’s failure to engage with him; and,
      4. the ASB Officer’s failure to act impartially and their resulting presumption of of guilt without giving Mr X the chance to properly defend himself.
  4. The Council acknowledged receipt of Mr X’s complaint on 9 July 2019. On 7 August 2019, following a chaser from Mr X on 17 July 2019, the Council informed Mr X it could not respond to his complaint while the ASB enforcement investigation was ongoing.
  5. Mr X told the Council his complaint was about the conduct of the ASB Officer and not the ongoing investigation. On 8 August 2019, the Council explained the ASB Officer’s comments at the time they issued the CPW were made in the heat of the moment and assertive in nature. Mr X continued to disagree with the Council’s view of the matter and asked if he had reached the end of the complaints process. He says he has received no response from the Council to this enquiry.
  6. On 18 November 2019, Mr X asked the Council to reopen his complaint about the ASB’s Officer’s conduct as the Council had now withdrawn the CPN. The Council told Mr X the reason for withdrawal of the CPN had been discussed with his legal representative.
  7. Between November 2019 and January 2020, Mr X continued to ask the Council for further information about why it had decided to withdraw the CPN against him. This included him asking a local Councillor to contact the Council on his behalf. The Council advised the Councillor that it could not provide details of the legal advice it had received prior to the CPN withdrawal.
  8. On 13 January 2020, the Council sent Mr X a stage one complaint response about the conduct of the ASB Officer. It reiterated the Officer’s view that they had been assertive when they met with Mr X in May 2019 and felt they had sought to mirror Mr X’s attitude. The Council explained it had asked the police officer that attended with the ASB Officer for their comments, and they had confirmed the ASB Officer’s view that their approach had been assertive but appropriate in the circumstances. The Council explained it could not provide a definitive view on what had happened during this encounter because the bodycam footage the police officer had recorded at the time had since been deleted (in accordance with the police’s data protection policy).
  9. On 23 April 2020, Mr X’s new legal representative wrote to the Council. Their letter set out the history of the matter and asked the Council to explain its reasons for withdrawing the CPN. The legal representative alleged the Council had failed to follow statutory guidance when it issued the CPN and had not taken proper account of previous vexatious and unfounded allegations some neighbours had made about Mr X. The legal representative asked the Council to confirm it would give Mr X the opportunity to respond to any further allegations made by his neighbours before the Council issued any further CPWs and CPNs.
  10. The Council responded to Mr X’s legal adviser in early May 2020 and explained it had previously corresponded with Mr X directly about this issue. The Council confirmed it would treat any future concerns about Mr X from his neighbours in line with the relevant legislation and guidance.
  11. Mr X remained dissatisfied as he still did not know the nature of the concerns that had been raised about him, the evidence the Council had relied on or the reasons why the Council had decided to withdraw the CPN. At the end of June 2020, the Council’s Head of Public Protection agreed to consider Mr X’s complaints and provide a comprehensive response. Mr X provided a further detailed letter of complaint to the Council on 20 July 2020.
  12. On 1 November 2020, the Council’s Head of Public Protection acknowledged receipt of Mr X’s further complaint and asked if he was willing to wait until their workload had reduced following the conclusion of the COVID-19 pandemic before receiving a response.
  13. Mr X brought his complaint about the Council to us in early December 2020. We asked the Council to complete its final complaint response before we would investigate.
  14. The Council sent its final complaint response to Mr X on 21 April 2021. It apologised for the delay in responding. The Council’s Head of Public Protection confirmed the Council’s position about the conduct of the ASB Officer that attended Mr X’s home in May 2019. They explained the lack of independent evidence from the police officer’s bodycam footage meant there was no way of verifying what exactly had happened. The Head of Public Protection concluded this complaint was unsubstantiated.
  15. The Head of Public Protection also considered Mr X’s concerns about the Council’s last-minute decision to withdraw the CPN against him. They explained the content of the legal advice the Council had received was privileged and its content could not be disclosed to Mr X. They also understood verbal discussions between the Council’s Legal Team and Mr X’s solicitor at the time covered the reasons for the CPN’s withdrawal.
  16. Mr X remained dissatisfied following the Council’s final complaint response and returned to us to escalate his complaint.

Analysis

  1. Based on the evidence I have seen; I am not satisfied the Council’s handling of ASB complaints about Mr X was in line with statutory guidance. There is limited information about what led the Council to pursue this formal action given the limited evidence it had. Like Mr X, I too have concerns about the Council’s decision not to give Mr X the chance to respond to the allegations made against him before issuing the CPWs and CPNs in this case. The Council was at fault for this, which caused significant distress to Mr X and his family.
  2. The content of the CPN lacked the specificity to meet the requirements of the legislation and statutory guidance. Some of the issues the CPN sought to address do not meet the threshold to constitute behaviour which was having a detrimental effect on the community's quality of life, was persistent and continuing in nature and unreasonable. The Council’s decision to issue a CPN in these circumstances appears ill-conceived and heavy-handed.
  3. The Council’s decision to decline Mr X’s continued and repeated offers to discuss the issues was also fault. Its action was contrary to the principles of natural justice, which gives alleged perpetrators the chance to defend themselves. This action ultimately left Mr X with no choice but to pursue his formal right of appeal in court. The costs he incurred in taking this action and instructing a solicitor was entirely avoidable and fault by the Council.
  4. There was a significant delay in the Council responding to Mr X’s complaints at various points throughout this process. This was fault as the Council has not handled Mr X’s complaints in line with its published timescales. This has put Mr X to additional time and trouble to pursue his complaints with the Council and then us.
  5. The Council’s delay in dealing with Mr X’s complaints also meant it lost the opportunity to obtain vital independent evidence (the police bodycam footage). This most likely would have assisted its investigation into Mr X’s complaint about the ASB Officer’s conduct. This was further fault by the Council, which has created uncertainty for Mr X as he will now never receive the Council’s definitive view of the ASB Officer’s conduct.
  6. I understand Mr X would like to know the precise content of the legal advice the Council received prior to withdrawing the CPN. I agree the Council is entitled to decline to provide information that is clearly subject to legal professional privilege and therefore strictly confidential. I hope however that my findings provide some clarity and much needed closure in terms of our view of the Council’s handling.

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Agreed action

  1. To remedy the faults identified in paragraphs 40 to 44 above, the Council has agreed to complete the following actions within one month of the final decision:
  • apologise to Mr X for the distress and uncertainty caused by its handling;
  • make a payment of £500 for the time and trouble caused by the delay in complaint handling;
  • reimburse Mr X’s legal costs up to the date the Council withdrew the CPN (upon receipt of an invoice from Mr X’s solicitor, which provides a detailed breakdown of the work undertaken);
  • issue written guidance to all relevant staff reinforcing the importance of following the statutory guidance when investigating ASB complaints – in particular the need to ensure the evidential threshold for formal action has been met, the wording of any CPW and CPN provides clear description of the unreasonable conduct and the actions the recipient must take to avoid further action. This should also make reference to the relevant case law guidance in Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin) which describes good practice about the content of CPNs and a council’s ability to revoke or vary CPNs where appropriate.

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Final decision

  1. I have completed my investigation and uphold Mr X’s complaint. Mr X has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice and improve its service.

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Investigator's decision on behalf of the Ombudsman

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