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London Borough of Hillingdon (21 005 792)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 18 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained about the conduct of civil enforcement officers acting on behalf of the Council in April 2021. We cannot say if the civil enforcement officers acted appropriately on the day, however we have found fault with their administrative practice. The Council agreed to remedy the injustice this caused to Mr X.

The complaint

  1. Mr X complains about the conduct of two enforcement officers in mid-April 2021. He says the officers intimidated him and took photographs of his car and blue badge without properly explaining their reasons for this.
  2. Mr X says this made him feel humiliated and scared as at first he thought the officers were the police.
  3. Mr X would like the Council to apologise to him for the distress the officers’ actions caused him.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. 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 considered the information Mr X sent me, and I have spoken to him about his complaint.
  2. I considered the Council’s response to my enquiries.
  3. Mr X and the Council have 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

Public Space Protection Orders (PSPO)

  1. The Anti-social Behaviour, Crime and Policing Act 2014 gives the Council powers to place restrictions on a public area including:
    • requiring dogs to be on a lead in a specific public area;
    • limiting the number of dogs a person can walk at one time;
    • requiring owners to clean up after their dogs; or
    • preventing dogs from being in a children’s play area.
  2. Failure to comply with a PSPO can result in a fine.
  3. In this case, the Council has a PSPO in place for the park in which the incident Mr X is complaining about happened. The restrictions say that one person cannot walk more than four dogs at a time. Professional dog walkers cannot walk more than six dogs at a time unless they have a dog walking licence.

Fixed Penalty Notice

  1. A Fixed Penalty Notice (FPN) is offered as an alternative to prosecution for some offences. Councils can issue FPNs as an alternative to prosecution for breaches of PSPOs. If someone pays a FPN within the time allowed, the Council cannot prosecute them for the related conduct.

Council’s enforcement

  1. The Council outsources its enforcement of PSPOs to a private company.

Instruction to civil enforcement officers when to use their body worn cameras

  1. The enforcement company requires the civil enforcement officers use a Body Worn Camera (BWC) to help minimise the risk of assault/abuse. The footage would act as an independent witness in the event of a variety of different situations ranging from verbal abuse, threatening behaviour, assault through to Road Traffic Incidents. The BWC video evidence may also be used in resolving customer complaints about the actions of enforcement officers.
  2. The enforcement company’s instruction to civil enforcement officers says that they must switch on the camera before any conversation/investigation starting with individuals when an offence has been witnessed, when issuing FPNs or notices. It says they should also record the time, witnesses and location before they turn the camera off.

What happened

  1. In April 2021 Mr X visited a park to walk his five dogs. He said that after he put his dogs in a van, and as he was about to leave the park, two civil enforcement agents approached him and a friend he was with. Mr X told us that the officers blocked the entrance to the car park, so that nobody could leave or come into it.
  2. Mr X said that the officers:
    • asked him questions about what he was doing;
    • took photographs of his car and his blue badge;
    • threatened to call the police; and
    • did not identify themselves, which intimidated Mr X.
  3. The following day Mr X complained to the Council about the conduct of the civil enforcement officers and about what had happened. The Council did not reply to his complaint.
  4. Mr X chased the Council for a response to his complaint in late April and the beginning of May.
  5. At the end of May the Council responded to Mr X’s complaint and said that:
    • as part of investigating the complaint the Council looked at information Mr X gave it, but also reports from the two civil enforcement officers;
    • the civil enforcement officers’ recollection of the events was different;
    • there was no independent evidence that would support Mr X’s or the civil enforcement officers’ views and the Council could not say what exactly happened on the day. However, all civil enforcement officers were required to deal with people politely, helpfully and if the need arises firmly. The Council apologised that this was not Mr X’s experience;
    • the civil enforcement officers were there after antisocial behaviour reports relating to dog walking; and
    • the response to his complaint was delayed because there was an overlap between the officer considering his email and Mr X submitting another online complaint form.
  6. A few days later Mr X asked the Council to escalate his complaint as he was not happy with its initial response. He said that the Council:
    • did not look at the footage form the body worn cameras the two officers had; and
    • he complained as the officers collected personal data from him and he felt harassed.
  7. In early July the Council issued its final response to Mr X. It said that:
    • the civil enforcement officers recorded the incident on their body worn cameras;
    • the video showed the civil enforcement officer did identify himself;
    • a civil enforcement officer can ask someone to provide personal details if they suspect the person may be committing an offence;
    • civil enforcement officers did not have the right to detain members of public, and Mr X was free to leave anytime. The video showed the officers did not try to block Mr X or the entrance to the park; and
    • the Council was satisfied the civil enforcement officers acted appropriately and in line with their role in this case.
  8. Mr X was not happy with the Council’s response, so he complained to the Ombudsman.

Council’s response to our enquiries

  1. Initially the Council sent us footage from a body worn camera which it said was the incident Mr X was complaining about. After further enquiries it realised that this was not the case, and it was not Mr X in the footage.
  2. The Council then confirmed that:
    • it had no body worn camera footage from the incident Mr X was complaining about;
    • there were no notes or photographs from the day as the civil enforcement officers only issued a FPN to a woman;
    • it believed the woman who received the FPN worked with Mr X as a dog walker. The Council also said that in the past it issued four FPNs to Mr X and that in 2019 it started legal proceedings against him for similar offences;
    • the enforcement officers did not take any photographs of Mr X’s car on the day he is complaining about; and
    • the enforcement officers did not take any notes on the day relating to the incident Mr X was complaining about.
  3. The Council could not tell us how it arrived at its findings in its July 2021 complaint response without any body worn camera footage of the incident.

Analysis

Council’s enforcement action

  1. The Council has a PSPO for the park that restricts the number of dogs a single person can walk at a single time. This means the civil enforcement officers can take enforcement action when they have reason to believe someone is breaching the order. There is no fault in the enforcement officers investigating or issuing FPNs to people who do not comply with the PSPO.
  2. Because of this, there was no fault in the civil enforcement officers approaching and asking Mr X questions to ensure that he was not breaching the PSPO.

Conduct of the civil enforcement officers

  1. Mr X complained about the conduct of the civil enforcement officers during an incident that took place in April 2021.
  2. The Council told us that there is no footage from the body worn cameras that captured what happened during the encounter with Mr X. The instruction to the civil enforcement officers is to switch the camera on when they witness an offence being committed, or when issuing an FPN. The officers did not capture their conversation with Mr X. As we were not present, we are not able to say if the manner in which the officer acted was appropriate or not, even on the balance of probabilities. Additionally, the Council has already apologised to Mr X for his experience.
  3. While officers can approach the public and ask questions if they have a reasonable suspicion they are breaching a PSPO, the policy says the civil enforcement officers should have their body worn cameras switched on during the investigations and it is good administrative practice to make a written record. The officers did neither. We consider this to be fault.
  4. Additionally, the Council said the civil enforcement officers went to the park to respond to reports of anti-social behaviour reports. Upon arrival any contact the officers made with members of the public would form an early part of their investigation into the allegations of a breach of the PSPO. We expect the civil enforcement officers to make accurate records of any such investigations showing their reasoning for decisions. This can be a decision to issue an FPN or not to take any further action.
  5. Given the enquiries the civil enforcement officers may make may lead to criminal prosecution, where the burden of proof is higher than the civil one, we consider accurate record keeping to be of paramount importance. This can be either on the body worn cameras or in the officers’ logbooks.

Council’s response to Mr X’s corporate complaint

  1. In July 2021 the Council told Mr X that it reviewed the body worn camera footage of the incident he was complaining about and based on this did not uphold his complaint.
  2. Only as a result of our investigation has the Council confirmed there was no body worn camera footage of the incident, and the Council relied on incorrect footage, that did not have Mr X in it, to conclude his complaint. This is even though in its stage one response the Council told Mr X that it did not have any independent evidence to corroborate what happened on the day. This is fault.
  3. This has caused Mr X avoidable time and trouble in pursuing his complaint, as well as uncertainty about what information, if any the Council held about his encounter with the civil enforcement agents.

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Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the service of the organisation, we have made recommendations to the Council.
  2. Within one month of the date of the final decision statement, the Council will:
    • pay Mr X £100 to remedy the frustration and unnecessary time and trouble he experienced; and
    • offer him a meaningful apology for the faults identified in this decision statement and the impact they had on Mr X.
  3. Within three months of the date of the final decision statement, the Council will:
    • review its policy about body worn camera footage to ensure it is clear on what interactions the officers should be recording in order to allow the Council to meet the objective of having independent evidence to rely on during customer complaints resolutions; and
    • share any updates to the policy with the civil enforcement agents to ensure they know when and how to record their investigations.

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Final decision

  1. There was some fault in how the Council recorded the contact between Mr X and its civil enforcement officers. The Council agreed to remedy the injustice it has caused to Mr X and my investigation is now complete.

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Investigator's decision on behalf of the Ombudsman

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