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Herefordshire Council (20 009 387)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 13 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council wrongly issued him with a Community Protection Notice warning letter without properly investigating the allegations against him. We found there was fault in how the Council investigated the allegations made against Mr X. The Council has agreed to pay Mr X £100 for the distress it caused him.

The complaint

  1. Mr X complained the Council wrongly issued him with a Community Protection Notice (CPN) warning letter. He says the Council issued the letter without properly investigating the allegations against him or checking whether there were grounds for such a warning. Mr X said he was experiencing health problems, and the Council’s decision to issue the warning caused additional distress and anxiety.
  2. Mr X would like to Council to apologise and provide a financial remedy for the distress caused.

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The Ombudsman’s role and powers

  1. 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)
  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 spoke with Mr X and considered the information he provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I referred to the relevant legislation and non-statutory guidance including Guidance on the use of community Protection Notices by Chartered Institute of Environmental Health (the Guidance).
  4. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Community Protection Notices

  1. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take 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.
  2. Before a council issues a CPN it must provide a written warning to the person, this is a Community Protection Notice warning (CPW). A CPW must tell the person if they do not stop their anti-social behaviour the Council could issue a CPN.
  3. A CPW must detail the anti-social behaviour or conduct that must stop. The CPW must have a set timescale for when action must stop and for its review. There is no appeal process for a CPW.
  4. The Council issues a CPN when it considers the conduct of an individual or organisation is:
    • Having a detrimental effect on the quality of life of those in the area.
    • Persistent or continuing in nature.
    • Unreasonable.
  5. The Guidance on the use of Community Protection Notices, (The Guidance), by Chartered Institute of Environmental Health (CIEH) says that:

“In deciding whether the conduct complained of is having a sufficiently detrimental effect on the quality of life of those in the local community, investigating officers should base their decisions on relevant evidence. Normally, they should speak to the victims to obtain first-hand accounts of the conduct, its characteristics such as frequency and duration, and of its impact. Investigating officers should make a record of complainants’ account.

Investigating officers must form an objective opinion of the conduct, excluding possible exaggeration, prejudice or unusual sensitivity; and they should remain uninfluenced by their own norms.

CPNs cannot be issued prospectively to prevent conduct that has yet to occur. A history of persistent or continuing conduct meeting the threshold needs to have occurred. If repeated once or twice, where there was a low chance of further repetition, it would be arguable whether this is persistent or continuing.”

What happened

  1. Since 2009 Mr X has had various unrelated differences with his neighbours. In July 2020, the Council’s planning department received a complaint from his neighbour, Mr T, about Mr X using his roof top terrace without suitable planning permission. The complaint mentioned the terrace Mr X uses overlooks the neighbouring gardens and the complainant alleged he saw Mr X using his terrace naked.
  2. The planning officer contacted the environmental protection team and asked if the Council could serve a CPN on a person walking around naked on a flat roof. The planning officer said there may be minor planning breaches, but they were yet to visit the property to decide.
  3. An officer from the environmental protection team responded and said the Council may have grounds for a CPN. They agreed to speak to the complainant to find out more about the circumstances. In response to my enquiries the Council said an Officer visited the location, took photos and spoke to the complainant about the concerns over Mr X’s behaviour. The records the Council sent me show the date of conversation and photographs taken but do not evidence any details of what the complainant said. The Officer then consulted the planning permission and decided it allowed Mr X to use the roof terrace only for solar panels.
  4. The Officer got external legal advice whether the Council could serve a CPW on Mr X. Following that, they decided to issue Mr X a CPW that said:
    • He was in direct breach of planning permission using the roof terrace as an outdoor space for sitting.
    • The roof terrace was only to be used to facilitate solar panels as per planning permission.
    • Mr X’s behaviour, specifically him walking around on the roof terrace, bare- chested and appearing as if he may be naked, was causing distress to his neighbours.
    • Allowing any other person to use the roof terrace was negatively impacting the amenity of his neighbour’s house.
  5. The case records show Mr X was away when the Council issued the CPW, therefore it did not get a chance to speak to him and explain the CPW. The Officer also sent a copy of the CPW to the police.
  6. In August Mr X wrote to the Council and said it did not properly investigate the allegations against him. He questioned the Council’s decision to issue the CPW because:
    • The Council had issued the CPW before the planning department had a chance to consider the complaints.
    • In the CPW the Council referred to wrong planning drawings.
    • He was on the roof to install panels that would protect his neighbour’s privacy.
  7. In August, planning enforcement visited Mr X and decided he was not in breach of his planning permission.
  8. The Council responded to Mr X’s complaint. It said it did not base its decision to issue him with a CPW on the dispute of planning permission. It said the Officer considered Mr X was responsible for unreasonable behaviour which was having a detrimental effect on the quality of life of others. The Council also said that at first it considered its actions to be hasty, but after assurance of external legal advice it satisfied itself the matter was resolved as Mr X had screened the balcony. In its final response the Council sent to Mr X in November it apologised for bringing planning up as a reason for it issuing CPW to Mr X and confirmed that it now considered the matters closed. Mr X said he did not receive this letter.
  9. Mr X was unhappy with the Council’s response and in December 2020 he complained to the Ombudsman.

My findings

  1. The Council’s case records show it interviewed Mr T, however it did not compile contemporaneous records of that meeting. I consider that to be fault. The Council cannot demonstrate the information that it considered when it decided to issue the CPW. It retrospectively provided more information in response to my enquiries.
  2. I have seen no evidence the investigating officer spoke to Mr X about the allegations made against him. While I understand there is no such duty placed on the Council, the Guidance states that investigating officers should have an “objective opinion of the conduct, excluding possible exaggeration, prejudice or unusual sensitivity”. Without interviewing Mr X, it is unclear how the Council could have reached an objective opinion. In addition:
    • There is no evidence of the investigating officer considering that Mr X had been in dispute with Mr T before this issue, and the impact this may have had on the allegation.
    • The Council relied on several photographs as evidence against Mr X. One of them shows that Mr X was not naked. This contradicts the allegations made against Mr X. Additionally, Mr X acknowledged that he was working shirtless when he was on the roof to install the screening panels.
  3. Furthermore, for a CPW or CPN, the behaviour must be detrimental in nature, unreasonable and persistent/continuing. The investigating officer considered the reasonableness of Mr X’s actions, and the effect it had on Mr T. However, I cannot say that the officer considered the continuity and persistence of Mr X’s behaviour. The term “often” is the only one used in reference to this aspect of his behaviour and I have seen no evidence of any other complaints made to the Council about Mr X’s behaviour. I would expect the officer to be able to demonstrate how they considered the frequency of the behaviour to show it met the threshold to be considered as ‘persistent’. I would also expect the findings to be recorded on the case file. There is no evidence of this recorded on the file and this is fault. This has caused Mr X an uncertainty about the information the Council considered when it decided his behaviour met the threshold for a CPW.
  4. Given the above, I find the Council failed to properly investigate the allegations against Mr X. That was fault. As a result, Mr X was not given the opportunity to explain he was not naked when putting up screens on the roof-terrace to protect his neighbour’s privacy. It is not possible to say whether the Council would have issued a CPW if it had carried out its investigation differently however, the above faults have caused Mr X uncertainty and avoidable distress at a time when Mr X says he was more vulnerable because of health problems.
  5. The Council issued Mr X with a CPW saying he was in direct contravention of his planning permission before the planning department finished its investigation. Therefore, it included incorrect information in the CPW. I consider this to be fault. This has caused Mr X an injustice as Mr X was not allowed to use his roof-terrace until the Council’s final response where it said that it considered the matter to be closed. The Council has already apologised for including its planning considerations in the CPW it issued to Mr X.

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Agreed action

  1. Within a month of the final decision the Council will:
    • Share this decision with the Environmental Protection Team to ensure that all officers are aware of my findings and how that impacts their work.
    • Pay £100 to Mr X for the uncertainty and avoidable distress the Council’s actions caused him.

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Final decision

  1. I completed my investigation and uphold Mr X’s complaint about how the Council investigated the allegations made against him. This has caused Mr X uncertainty and avoidable distress and the Council agreed to pay him £100 to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman

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