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Middlesbrough Borough Council (20 011 701)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 01 Sep 2021

The Ombudsman's final decision:

Summary: Mr X complained about visits to his property from Council officers, the Council’s failure to deal with complaints about these visits and the designated point of contact who failed to respond or deal with his concerns. The Council was not at fault for visiting Mr X’s premises as it did so in response to concerns raised by members of the public. It failed to clearly explain the limits and boundaries of the designated point of contact and did not respond to one of Mr X’s complaints. It has agreed to apologise to Mr X for this

The complaint

  1. Mr X complained about what happened after the Council dealt with his complaint about the actions of neighbourhood safety wardens, agreed there was fault and that it would take action to address this. It also provided Mr X with a designated point of contact for future concerns. Since then, he complains officers have continued to visit his property which he says is in retaliation for his complaints. He says the designated point of contact has failed to respond to or deal with the issues he raised, and the Council failed to deal with his subsequent complaints through its complaints’ procedure. This has caused him significant distress.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
  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 have considered the information supplied by Mr X in writing and on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

  1. The Council employs neighbourhood safety wardens as part of its priority of tackling crime and anti-social behaviour. They proactively patrol, respond to complaints of anti-social behaviour and issue fixed penalty notices for issues such as dog fouling and littering. They also carry out parking enforcement.

What happened

  1. Mr X runs a business from a unit on a residential street. In front of the unit are a row of parking spaces. Mr X uses the spaces directly outside his business for customer parking and for parking cars used as part of his business.
  2. An enforcement officer visited Mr X regarding concerns about vehicles parked in the parking bays. Mr X spoke to the officer and explained the bays were private. The officer agreed to update the Council’s system to reflect this.
  3. In November 2020 neighbourhood safety wardens placed abandoned car stickers on cars parked outside Mr X’s business. Mr X says in doing so the wardens parked on double yellow lines. He complained to the Council about this and about the attitude of the wardens.
  4. A Council officer responded to Mr X’s complaint in early December 2020. They apologised for how the neighbourhood safety wardens spoke to him and for the manner in which they parked their vehicle. The officer provided him with a designated point of contact for the service. It said that officers could seize untaxed vehicles that are on adopted highway or council owned land. If a vehicle is untaxed and on private land and has permission of the landowner to be there the Council has no powers to seize it. They said ‘as in this instance the bays outside of your business are private and as such we have no powers to seize a vehicle untaxed from this location (I haven’t checked the land ownership of those bays but I take your word that they are private)’.
  5. In January 2021 an enforcement department visited and left a card on one of Mr X’s vehicles. Mr X complained to the Council as at the previous visit an enforcement officer said they had noted on their system the spaces were private land.
  6. The Council responded to Mr X’s concerns. It said it received a complaint from a member of the public about an untaxed vehicle on the road where Mr X’s business was. An officer visited and found the vehicle parked in a private parking bay. So, no action was taken. The officer left a card asking the vehicle owner to contact them to discuss the complaint. The letter set out the permitted use of trade plates. It noted that several cars came and went from Mr X’s business and it was impossible for officers to know the ownership of every vehicle relating to an investigation they attend at the time of their arrival.
  7. Also, in January 2021 Mr X complained a warden had failed to issue a ticket to a regular offender who had parked on double yellow lines. The Council responded that it gave four to five minutes discretion before ticketing a vehicle. The owner had turned up, so it did not issue a ticket. Mr X says the warden was there nine minutes and decided did not ticket the vehicle to upset him.
  8. In January 2021 the Council received a complaint from a member of the public that Mr X’s business seemed to be operating despite COVID-19 restrictions. Officers from the Council’s public protection service visited Mr X’s business. The Council’s notes record the officers advised Mr X that his business was allowed to continue during lockdown. Following the visit Mr X called and emailed the council about the visit. It emailed him two days later to confirm his business was allowed to continue trading and there were no regulations preventing it.
  9. Mr X complained about the visit. Mr X says the designated point of contact ignored him and did not return his calls. So, he sent a number of emails to several Council officers over a short period complaining about the visit and that he was being harassed by the Council. He said he would report any further harassment to the police.
  10. The Council responded in early February 2021. It said the visits were in response to complaints it had received and so it was duty bound to respond. It did not consider there were any new issues to investigate. It said due to the number of emails he had submitted it would monitor his contacts and the complaints team would decide if contacts required a response. It gave him the number to ring for any neighbourhood safety issues. It also raised concerns about his use of CCTV and referred him to the Information Commissioner’s website. In a further email the Council explained some officers felt their employees’ actions were being misrepresented by Mr X using specific excerpts from CCTV footage rather than the whole encounter.
  11. Mr X remained unhappy and complained to the Ombudsman.
  12. In late May 2021 a Council officer visited the site and took photos of signs outside Mr X’s business in response to a complaint it received about the public not being able to use the parking spaces outside Mr X’s premises. Mr X complained this was harassment and asked why an officer was sent to take photos.
  13. The Council responded to Mr X’s complaint in June 2021. It said the mapping system showed the parking bays were on an adopted highway. A member of the parking team visited to check if signs were installed to reserve parking for a particular business and took photos. It said it was satisfied the officer had undertaken their duties in relation to the query brought to the Council’s attention.

Findings

  1. When Mr X complained about the action of the Council’s wardens it investigated and accepted Mr X’s explanation that the parking bays were on private land. It also apologised for the behaviour of the wardens. The Council responded appropriately to Mr X’s complaint.
  2. The Council, after further complaints, investigated the status of the parking bays further and now considers the land is an adopted public highway. I do not know what rights or agreement Mr X has over the use of the parking bays and it is not for the Ombudsman to resolve this. That is a matter for the Council to resolve with Mr X and it is open for Mr X to seek legal advice on this issue.
  3. There have been a number of visits by neighbourhood safety wardens and other officers to the street and to the area near Mr X’s business, but the Council has a duty to investigate complaints when it receives them from third parties. It cannot disregard them because of Mr X’s perception of the motives behind the complaints. Mr X may feel harassed by the visits but there is no evidence the Council has visited Mr X’s business excessively, frivolously or for spurious reasons. The Council is not at fault.
  4. In December 2020, the Council allocated Mr X a designated point of contact. In response to my enquiries the Council said this was only in relation to matters related to the neighbourhood wardens. It says the officer met with Mr X and spent a significant amount of time talking to him that week. It said Mr X repeatedly contacted the officer on his mobile, often outside working hours and did not use the hotline number for the service. It said this arrangement was suspended by the communication plan put in place in February 2021. I have seen no evidence the Council explained to Mr X the boundaries of his contacts with his designated point of contact or that he should use the hotline number and not the work mobile number given to him by the officer. I have seen no evidence the Council advised Mr X his calls to the officer were excessive. This was fault and caused Mr X frustration when he stopped receiving responses from his designated point of contact.
  5. When the Council received a further complaint about the use of the parking bays an enforcement officer visited the site. The Council says it had noted on the system the bays were private and when the enforcement officer visited in January 2021 they did not check the Council’s system when investigating the complaint. This was fault. However, the officer attended in response to a complaint and so I do not consider it fault for the officer to have checked what was on site.
  6. Mr X also complained about a warden’s decision not to ticket a van. Mr X says the van was there longer than the four to five minutes grace period normally allowed by the Council. The officer has discretion to decide whether to take enforcement action and, in the circumstances, decided not to. That was a decision they were entitled to take and is not fault.
  7. Mr X complained about a visit made by public protection officers in relation to a complaint he was operating in breach of COVID-19 restrictions. The Council was required to visit in response to a complaint it received and was not at fault. The notes from the visit record officers told Mr X he was not in breach of the regulations and could continue to operate. It later confirmed this in an email.
  8. Mr X sent several emails over a short period of time complaining about this visit and requesting a response. The Council say it did not respond to Mr X’s complaint about the visit from the public protection service. It says this was because Mr X said he was pursuing legal action. Although in one he does refer to seeking legal advice, Mr X’s repeated contacts evidence he wanted to complain. The Council failed to clarify if he wished to make a formal complaint and this is fault. However, given that I found no fault in the Council visiting Mr X I cannot say this caused a significant injustice.
  9. Mr X has used CCTV at his property to evidence his concerns. The Council has explained to Mr X its concerns about his use of CCTV and has referred him to the Information commissioner’s Office for guidance. This was appropriate given the Council’s concerns.
  10. A Council officer visited again in May 2021 in response to a complaint from a member of the public. It responded to Mr X’s complaint appropriately and explained the reason for the visit. It was not at fault.

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Agreed action

  1. Within one month of the final decision the Council has agreed to apologise to Mr X for the frustration caused when it failed to clearly explain the role and boundaries related to his designated point of contact and for not responding to his complaint about a visit from the public protection service.

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Final decision

  1. I have completed my investigation. The Council was not at fault for visiting Mr X’s premises. There was fault when it failed to respond to a complaint and around the role of the designated point of contact. It has agreed to a remedy for the frustration this caused

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Investigator's decision on behalf of the Ombudsman

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