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London Borough of Barnet (21 000 286)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 14 Feb 2022

The Ombudsman's final decision:

Summary: Ms X complains the Council has failed to take action in respect of her neighbour’s dog repeatedly fouling outside of her property. She says her neighbour’s conduct is racially motivated. We have found no evidence to suggest the Council has failed in meeting its duty to maintain the cleanliness of its controlled streets. However, we do consider the Council has failed to properly consider its role in investigating allegations of anti-social behaviour. These failings have caused Ms X an injustice and so we have recommended a remedy.

The complaint

  1. The complainant, who I refer to as Ms X, complains the Council has failed to take any action in respect of a neighbour who continuously allows their dog to foul outside of her property. Ms X says the neighbour’s conduct is a way of harassing and bullying her on account of her racial ethnicity.
  2. In addition, Ms X says she has reported this matter to the Council over two years and yet it has failed to take action. She also says the Council has not responded to her in accordance with its own written complaints procedure.
  3. Ms X explains this matter is ongoing and causing her serious distress. As a desired outcome, she wants the Council to respond to her complaint, take action against her neighbour and pay her compensation.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
  4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended).

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How I considered this complaint

  1. I have reviewed Ms X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and guidance. I invited both Ms X and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Environmental Protection Act

  1. Councils do not have a legal duty to clean roads and streets at a set frequency. However, under the Environmental Protection Act 1990, they have to make sure that roads and open spaces under their control, and to which the public have access, are clean and free of litter and refuse as far as practicable.
  2. Councils are expected to set their cleaning schedules so that they meet the duty to keep their relevant land clear of litter and refuse, and highways clean.
  3. The Environmental Protection Act 1990 gives a person the right (under Section 91) to take legal action to require a council to remove litter on its land where this falls below the acceptable standard set out in the Code of Practice for Litter and Refuse for longer than the period specified. If the Magistrates’ Court is satisfied that the council is in dereliction of its duty under Section 89, it may make a Litter Abatement Order, requiring the council to clean up.

Anti-social behaviour

  1. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) defines anti-social behaviour as:

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or

(c) conduct capable of causing housing related nuisance or annoyance to any person.”

  1. Section 17 of the Crime and Disorder Act 1998 (“the 1998 Act”) places a statutory duty on named partners to consider the reduction of crime and disorder when exercising their core functions.
  2. The 2014 Act also created six new powers to tackle ASB. Of these, four are directly available to councils, which include:
      1. the power to issue community protection notices (CPN);
      2. the power to make a public spaces protection order (PSPO);
      3. the power to close premises for a specified period of time; and
      4. the power to apply to the courts for a civil injunction.
  3. The Council therefore has a legal responsibility to investigate allegations of anti-social behaviour and consider taking action where these are founded.

Chronology of events

  1. In January 2019, Ms X first reported an incident of a dog fouling outside of her property. Ms X’s records indicate she reported the matter again the same month, though this is not recorded on the Council’s system.
  2. Between April and May 2019, the Council recorded a further two reports by Ms X of dog fouling outside of her property. She says the Council failed to act.
  3. In November 2020, Ms X reported the same matter to the Council. She says the Council failed to take any action.
  4. In March 2021, Ms X reported the same matter on two separate occasions. She says the Council failed to take any action.
  5. In early April 2021, Ms X made a formal complaint to the Council. She explained she had been consistently reporting the issue of her neighbour’s dog fouling outside of her property for over two years, yet the Council had not taken any action. In addition, Ms X explained that she considered her neighbour’s conduct towards her was racially motivated.
  6. The Council said that its records showed that for two of the incidents reported a crew attended and cleared the dog fouling. For the third instance, the Council provided advice to Ms X that if she felt the incidents were racially motivated then she should report this to the police. It said it would continue to attend and remove any reported instances of dog fouling if reported.

My assessment

Time limits

  1. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion. In summary, Ms X first began reporting incidents of dog fouling in January 2019 and so, on the face of, the complaint is late. However, the matter is ongoing and the Council has not been able to provide evidence her issues were properly addressed. I am therefore exercising my discretion.

Dog fouling

  1. In all the circumstances, Ms X says the Council has not taken any action to prevent repeated incidents of dog fouling. Importantly, the Council cannot confirm whether any action was taken before January 2021 to clean the dog foul as this information has not been retained. However, the Council confirms a crew was dispatched to clear an incident of dog foul in March 2021.
  2. The Council has a legal duty to maintain the cleanliness of its controlled streets. I have not seen any evidence the Council has failed in meeting its duty in this respect. The Council has said it would have dispatched crew to attend to the dog fouling on five separate occasions and there is no evidence to suggest it did not. I recognise Ms X disputes this. However, Ms X has the right to take legal action in a Magistrates’ Court by seeking a Litter Abatement Order in accordance with Section 91 of the Environmental Protection Act 1990. I have not been presented any evidence to suggest it would be unreasonable for Ms X to do so and therefore the restriction I describe at Paragraph six therefore applies.
  3. In relation to Ms X’s allegation that her neighbour’s conduct is racially motivated, the Council said this is entirely a police matter. Though I do consider Ms X should report allegations of racially motivated harassment to the police, the Council also has a duty to both consider and investigate anti-social behaviour (see Paragraphs 12 to 15), regardless of criminality. By the Council’s own admission, it has not taken any action in this respect. For that reason, I consider the Council is at fault.
  4. The Council has since accepted that it does have a role in investigating anti-social behaviour, including where the complaint made is alleged to be racially motivated. The Council has also agreed to undertake a new joint investigation with the local police team into Ms X’s concerns and will be contacting her to ensure that her views are taken into account.

Injustice to the complainant

  1. Importantly, I cannot make a decision that Ms X has been subject to anti-social behaviour. Further, I cannot say whether it would be reasonable and proportionate in the circumstances for the Council to take action against Ms X’s neighbour. These are matters for the Council to properly make by exercising professional judgment. However, the faults identified show the Council failed in making these important considerations and I believe this has caused Ms X a degree of stress and anxiety. Further, the failings have prolonged the time Ms X has taken to complaint about these issues. For these reasons, I consider Ms X has suffered an injustice and I am therefore proposing a number of remedies.

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Agreed action

  1. To remedy the faults and injustice identified, the Council will, within one month of this final decision, pay Ms X £300. This is to serve as an acknowledge of the distress she has suffered due to the Council’s failings.
  2. The Council will, within three months of this final decision, undertake a review of its policies on tackling and responding to anti-social behaviour. Further, the Council will, and without unreasonable delay, investigate whether Ms X’s allegations amount to anti-social behaviour. If they do, the Council will give consideration to taking action in accordance with its powers.

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Final decision

  1. I have found no evidence the Council has failed in meeting its duty to maintain the cleanliness of its controlled streets. However, the Council failed to properly consider its role in investigating allegations of anti-social behaviour. These failings caused Ms X an injustice and so I have recommended a number of remedies.

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Investigator's decision on behalf of the Ombudsman

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