Summary: Ms X complains the Council failed to take sufficient action to deal with flytipping, anti social behaviour and drainage issues on an alleyway. The Council is at fault as it delayed in establishing its responsibility for the alleyway. This caused avoidable time and trouble to Ms X which the Council has agreed to remedy by apologising and making a payment of £150 to her.

The complaint

1. Ms X complains the Council has failed to take sufficient action to deal with flytipping, anti social behaviour and drainage issues on an alleyway as it wrongly believed it did not have responsibility for the alleyway.

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What I have investigated

2. I have investigated matters from January 2021. I have not investigated earlier events as it was open to Ms X to make her complaint to the Ombudsman sooner.

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The Ombudsman’s role and powers

3. 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)
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. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, (Local Government Act 1974, section 24A(6))

6. 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

7. I have:

• considered the complaint and the information provided by Ms X;
• considered the correspondence between the Council and Ms X provided by the Council;
• made enquiries of the Council and considered the information provided;
• invited Ms X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Highway adoption

A council may adopt highways so they are maintained at its expense. This can include footpaths.

Anti social behaviour

8. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
   Councils and the police can issue Community Protection Notices (CPN) or Community Protection Warnings (CPW) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable.

What happened

9. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that has happened.
10. Ms X uses an alleyway which is close to her property. In early 2021 she raised concerns with the Council about the condition of the alleyway. She said there were frequent problems with littering, dog fouling, anti social behaviour and drainage. Ms X said she had been informed that responsibility for the alleyway was a grey area.
11. The Council replied and advised the alleyway was being monitored. But it was difficult to maintain the area as it was owned by another organisation who I shall call organisation A. The Council said it did not fall within the maintenance of the Council.
12. Ms X continued to raise concerns about the condition of the alleyway including the presence of human faeces and flytipping.
13. In April 2021, the Council contacted organisation A and asked it to take action to improve the condition of the alleyway. Organisation A informed the Council that it was not responsible for the maintenance of the alleyway as it was a public pathway. Organisation A also said it had raised concerns about the condition of the alleyway with the Council.
14. Ms X continued to raise concerns with the Council about the condition of the alleyway. Emails between officers show the Council remained of the view it was not responsible for the alleyway.
15. Ms X continued to report instances of flytipping and fouling in the alleyway into Autumn 2021. Internal emails also show the Council removed flytipping and reported its finding following an inspection of the wider area. Ms X reported further instances of flytipping and other issues in the alleyway on a number of occasions.
16. In December 2021, the Council checked the land registry which showed organisation A held the lease and the Council held absolute title to the land. In January 2022, the Council notified Ms X that it would add the alleyway to its street cleaning schedule so it would be cleaned at the same intervals as adopted pavements. The Council then adopted the alleyway. Internal emails also show a senior officer advised in February 2022 that the Council was responsible for the maintenance of the alleyway.
17. Ms X also complained about anti social behaviour from people living on land adjacent to the alleyway. The Council notified Ms X it had patrolled the alleyway but there was no evidence the people were causing anti social behaviour. Officers had noted waste close to the alley but there was no evidence it had come from the land. Ms X continued to assert the people living on the land were causing anti social behaviour in the alleyway.
18. Ms X made a complaint to the Council about the lack of action to improve the condition of the alleyway, anti social behaviour by the people living on the adjacent land and the condition of the land. The Council responded at stage one of its two stage complaints procedure. It advised it was taking enforcement action to ensure the owner of the adjacent land removed waste.
19. In January 2022 Ms X requested her complaint be escalated to stage two as she considered the Council had not taken any action to improve the condition of the alleyway. The Council initially dealt with Ms X’s request by way of update. It explained that it would add the alleyway to its street cleaning schedule so it would be cleaned at the same intervals as adopted pavements. The Council said it could do little about the use of the adjacent sites.
20. The Council’s internal emails show officers were considering issuing a community protection warning to the land owner but concluded there was insufficient evidence to do so.
21. The Council responded to Ms X’s stage two complaint in February 2022. The Council:

• confirmed the Council owned the alleyway and apologised for the confusion over the ownership.
• confirmed it would add the alleyway to the street cleansing schedule.
• said it could not take action against people living on the adjacent land as they were there with the landowner’s permission.
• the condition of the land was an eyesore but there was no evidence to suggest the land was attracting vermin.

22. Ms X has said the condition of the alleyway has not improved and she is continuing to report issues with the alleyway. Ms X also disputes the Council’s position that the land is not attracting vermin.

Analysis

23. The Council failed to take sufficient action to establish its responsibilities for maintaining the alleyway and delayed in doing so. In response to my enquiries, the Council has said it carried out a land registry search which showed the area where dog fouling occurred was in the ownership of the school. But this was inadequate research as Ms X was raising numerous about the condition of the alleyway, not just one area. The Council should have undertaken further research when organisation A said the Council was responsible for the alleyway. The Council did not carry out a further land registry search until December 2021 and only established in February 2022 that it was responsible for the maintenance. The Council has not provided an explanation for why it took so long to establish its responsibility for the alleyway. I therefore consider the time taken amounts to delay and is fault.
24. The Council has now added the alleyway to the street cleansing schedule and has adopted to maintain the passage. On balance, I consider the Council would have taken this action sooner if the Council had not delayed in establishing its responsibility for maintaining the alleyway. The Council apologised to Ms X for the time taken in establishing that it owned the alleyway in its response to her stage two complaint which is an appropriate remedy. The Council also took action to remove the flytipping when Ms X reported it and officers responded to her about the concerns she was raising. But some of Ms X’s complaints about condition of the alleyway could have been resolved by the regular cleansing of the alleyway. So, Ms X was caused avoidable time and trouble by the delay in establishing the Council’s responsibilities. The Council should remedy this injustice.
25. In response to my enquiries, the Council said it did not have legal responsibility for the alleyway. But this is in conflict with the stage two response which says the Council owns the land and the land registry entry which shows the Council has absolute title. The Council should clarify what responsibility it has for the alleyway and ensure it is recorded to avoid any confusion in the future.
26. On balance, I consider the Council investigated Ms X’s concerns about people on the land adjacent to the alleyway causing anti social behaviour and there is no evidence of fault. The Council’s internal emails show officers visited the site and concluded there was insufficient evidence for it to serve a community protection warning. As the Council had investigated Ms X’s concerns and carried out a site visit, it had sufficient information on which to reach its decision not to serve a community protection warning. I acknowledge Ms X disagrees with the Council’s decision but as there is no evidence of fault in how the Council reached its decision, I do not have grounds to question it.
27. In its response to Ms X’s stage one complaint, the Council said it would take enforcement action over the condition of the land. The Council’s response to Ms X’s stage two complaints shows it decided not to take enforcement action. There is no evidence to show how the Council reached this decision. I note Ms X considers there is vermin on the land. But I will not pursue this matter further as it is not proportionate to do so. This is because any fault by the Council will not have caused significant enough injustice to Ms X to warrant further investigation. Although Ms X uses the alley way, she does not live sufficiently close to the land to be directly affected by its condition.
28. Ms X has said the condition of the alleyway has not improved and she still has to report issues. The Council has said the alleyway is cleaned twice a week since February 2022 and is monitored and has provided evidence of the monitoring. I therefore have no reason to doubt the Council is cleaning the alleyway as it has undertaken to do.

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Agreed action

29. That the Council
1. sends a further written apology to Ms X and makes a payment of £150 to acknowledge the avoidable time and trouble caused to her by the delay in establishing it is responsible for maintaining the alleyway.
2. clarifies the nature of its responsibility for the alleyway and ensures it has a clear record of this responsibility to avoid future confusion as to its responsibilities.
30. The Council should take the action at a) within one month of my final decision and the action at b) within two months of my final decision.

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Final decision

31. Fault causing injustice to Ms X.

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Investigator's decision on behalf of the Ombudsman