Summary: Mr X complained about the Council’s failure to take action to remove abandoned vehicles parked outside his home. We have found the Council to be at fault because it took too long to progress the case. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mr X and take action to improve the Council’s service.

The complaint

1. Mr X complains the Council has failed to take action to remove abandoned vehicles parked on Council owned land outside his home, despite him reporting the problem since 2017.
2. Mr X says this has caused considerable distress, particularly as the area around the vehicles attracts vermin and anti-social behaviour.

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What I have investigated

3. I have only investigated the Council’s actions from January 2020 onwards. The paragraph at the end of this statement explains why. Reference to any period before this date is included only to put Mr X’s complaint in context.

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The Ombudsman’s role and powers

4. 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)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. If we are satisfied with an organisation’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

8. I spoke to Mr X and considered the information he provided.
9. I made enquiries of the Council and considered its response.
10. I considered the relevant legislation.
11. Mr X and the Council were given the opportunity to comment on a draft version of this decision. I have considered their comments before I made my final decision.

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What I found

Refuse Disposal (Amenity) Act 1978

12. The Refuse Disposal (Amenity) Act 1978 (the Act) says someone abandoning a vehicle on any land in the open air without authority is guilty of an offence and can be fined. The Act places a duty on councils to remove abandoned vehicles from land or roads in their area.
13. The decision on whether to classify a vehicle as being abandoned rests with the council.

What happened

14. I have set out below a summary of the key events. But it is not meant to show everything that happened.
15. In January 2020, Mr X reported two apparently abandoned vehicles on land outside his property. He had made several, similar reports since 2017. During that time Mr X had provided evidence to the Council that it owned the land in question. He also advised the Council who was responsible.
16. In response, the Council said it would use its powers under the Act and issue a fixed penalty notice (FPN) because it had established the vehicles had no registered keeper. Mr X was notified.
17. Mr X, while pleased with this progress, asked the Council to reinstall bollards to prevent the problem reoccurring. Bollards had previously been there, but had been knocked over by a refuse vehicle and not replaced.
18. The Council agreed.
19. In early March 2020, the Council decided to write to the presumed owner of the vehicles (Mr B), prior to issuing the FPN and installing the bollards. Mr X was told this was to ensure the Council had a “strong case” if it went further.
20. Mr B owned land adjacent to where the vehicles were parked. Mr B had previously told the Council he parked vehicles there to prevent travellers being able to access his land.
21. On 17 March 2020, the Council told Mr X there was a delay in sending the letter to Mr B because the officer dealing with the case (Officer P) was absent from work. On 30 March 2020, Officer P instructed the Council’s Highways Department to install bollards. She was told this would be done within 28 days.
22. The letter to Mr B was sent in April 2020. Mr B contacted the Council to say he was unable to remove the vehicles because he was self-isolating due to Covid-19. As the vehicles could not be moved, the Council had to postpone the scheduled installation of the bollards
23. Mr B moved the vehicles in late May 2020. The Council’s Highways Department was reinstructed to install the bollards. Officer P asked for it to be prioritised to prevent the vehicles returning.
24. Mr X contacted the Council on 17 June 2020. He was concerned that while the vehicles had not returned, they would do so without the bollards being in place.
25. Th Council did not erect the bollards. When Officer P chased this up with the Highways Department in July 2020, she was told the instruction was recorded as “abandoned”. As Mr X had predicted, the vehicles returned. It is not clear from the records when this happened.
26. In December 2020, Officer P again asked Mr B to remove the vehicles and told him that bollards would be erected. Mr B said he would not do so because he was ill. He also said his title deeds gave him a right of access that the bollards would impede. He said he was seeking legal advice.
27. The Council attempted to install the bollards on two occasions in December but was unable to do so because the vehicles were still in situ and, what the Council described, as “local resistance”.
28. The Council decided to delay the installation of the bollards, while it continued negotiations with Mr B.
29. In February 2021, Mr B challenged the Council’s legal right to erect bollards. He provided evidence to support his claimed right of access.
30. Frustrated by lack of progress, Mr X formally complained to the Council. He explained the need to install the bollards at the same time the vehicles were removed. He also reminded the Council, as the landowner, it had a responsibility to take decisive action to prevent the repeated offending. In response, the Council explained it was seeking legal advice about erecting the bollards because of Mr B’s claimed right of access.
31. In April 2021, Mr X asked for his complaint to be escalated to stage two of the complaints procedure. The Council replied in June 2021 and made the following points:

• It apologised for the delay in responding to his complaint.
• It was unable to install the bollards following legal advice.
• The only option was for the police to prosecute as an “unlawful obstruction”. The Council would continue to liaise with the police about this.

The Council’s response to the Ombudsman’s enquiries

32. In response to my enquiries, the Council made the following additional points:

• Legal advice confirmed the vehicles are not classified as abandoned. The Council has shared a copy of this advice with the Ombudsman on a confidential basis.
• Since 2017, several vehicles have been parked and then removed and subsequently replaced with others. The Council has responded to all reports and attempted to negotiate with Mr B to resolve the problem.
• The Council would continue to work with the police to explore the possibility of a prosecution. The decision whether to do so lies with the police, not the Council.

Analysis

33. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
34. In response to Mr X’s report in January 2020, the Council followed the correct procedure by making enquiries of the DVLA to establish whether the vehicles were abandoned. When this enquiry confirmed they were, the Council agreed to issue a FPN. This did not happen because Mr X, understandably, suggested this was pointless, without the bollards being installed at the same time.
35. The Council, aware of Mr B’s potential opposition, decided to tell him of the plan to install the bollards. I do not criticise the Council for doing so but it did take several weeks to contact with him because of officer absence. There was further delay in Mr B moving the vehicles for reasons relating to Covid-19, but I accept this was a matter beyond the Council’s control.
36. However, this delay affected the bollard installation. The records show Officer P contacted the Highways Department promptly after Mr B moved the vehicles. While I accept certain procedures had to be followed, and work must be prioritised, allocated and scheduled, I would have expected the bollards to be installed within a reasonable timeframe. When Officer P chased this up in July 2020, she was told the job had been marked as “abandoned”. I have not been provided with an explanation about why this happened and why no action was taken to correct this.
37. It is also disappointing that, from the evidence I have seen, Mr X was not informed. It was not until he contacted the Council again in December 2020 that the case was reopened. The Council should have had both better control over the case and kept Mr X updated. Overall, I am satisfied the failure to ensure the bollard installation took place in a reasonable timeframe, poor communication with Mr X and the delay in responding to his complaint was fault causing an injustice to Mr X.
38. I can see the Council made attempts to move the case forward in December 2020. The Highways Department attended on site to install the bollards but were prevented from doing so by residents. This was a matter beyond the Council’s control. Once it was on notice that Mr B has a claimed right of access to his land, I accept the Council had no choice but to suspend the bollard installation until this was properly investigated.
39. Upon receipt of Mr B’s supporting evidence, the Council sought its own legal advice. This has been shared with the Ombudsman on a confidential basis and is sufficient to satisfy me that the Council has properly considered the relevant issues, that may have been more complex that Mr X was aware of because of Mr B’s claimed access right.
40. The Council’s decision, that it was unable to install the bollards, without the police prosecuting Mr B first was based on legal advice, and this is a professional judgement that the Ombudsman is unable to interfere with. For this reason, I am also unable to criticise the Council’s opinion that the vehicles present 2021 were not “abandoned” and it was unable to use its powers under the Act.
41. While I am satisfied that, the Council’s later attempts to install the bollards were thwarted by Mr B’s objections, arguably, this could have been avoided entirely had the Council acted decisively in May/June 2020 when Mr B moved the vehicles. However, I cannot be certain of this because it is possible Mr B could have physically prevented the installation when the contractors arrived on site as happened in December 2020.
42. Regardless of this, the Council has taken far too long to reach its current position and I am satisfied this has caused significant distress and frustration to Mr X. This is injustice and I have made recommendations below to remedy this.

Current position

43. There is also unsatisfactory ambiguity about the current position. The Council’s stage two complaint response explained “Officer P will continue to work with the police in an effort to find a resolution to your concerns…the Council is committed to finding and amicable solution, working with [Mr B] and the police”. The Council said it would keep the situation under regular review.
44. There is no evidence it has done so.
45. I have asked the Council to update me about the current position and there are no records of any activity on this case since April 2021, other than a recollection of a phone call to a police officer. There are no records about what was discussed with the officer and what the outcome of this conversation was. Nor was Mr X updated about what happened. This is disappointing as we expect Council’s to maintain records of such events. This is further fault.

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Agreed action

46. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise to Mr X in writing for the faults I have identified.
2. Pay Mr X £300 in recognition of his frustration, time and trouble spent dealing with this matter.
3. Review the current position on site and contact the police again to determine what action can be taken. The Council should then contact Mr X to provide an update about what, if any, action the Council or the police intend to take.
4. Share my decision with all relevant staff. It should also remind them of the need to progress cases and complaints in a timely manner, keep customers informed and maintain proper records.

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Final decision

47. I have found the Council to have acted with fault and the Council has agreed an appropriate remedy. On this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

48. I did not investigate any complaint Mr X may have against the Council that took place before January 2020. This is because Mr X complained to us in January 2022. The law says we cannot investigate late complaints unless we decide there are good reasons. As the events have been ongoing and unresolved in since 2017, I see no reason why Mr could not have complained much earlier. For this reason, I will not exercise discretion to investigate what happened before 2020.

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Investigator's decision on behalf of the Ombudsman