Decision : Not upheld
Decision date : 07 Apr 2020
The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s getting and executing a warrant at her address. She says the Council did not execute the warrant correctly, wrongly took her property, and did not follow its own policies and procedures. She also complains the Council’s officers were rude and aggressive. The Ombudsman does not find fault with the Council’s actions.
- Mrs X complains about the Council’s actions in obtaining and executing a warrant at her address. She complains:
- The Council obtained the warrant illegally by provided inaccurate and misleading information to the court.
- The Council did not follow its own policies and procedures before it sought a warrant. This is because she says a warrant should have been a last resort.
- Officers did not execute the warrant correctly because officers entered through her business entrance.
- Officers were wrong to take her property because the warrant was for her husband’s business, not her business.
- The Council made her collect her property when it should have returned the property back to her address.
- A Council officer was rude and aggressive, both during the search and when Mrs X collected her property.
Mrs X also complains about the Council’s complaint handling. She says the Council did not appoint an independent person to investigate her complaint.
What I have investigated
- I have not considered Mrs X’s complaint that the Council obtained the warrant illegally. This is because the Court issued the warrant and a Court’s decision is not within the Ombudsman’s jurisdiction.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I spoke with Mrs X and considered the information she provided.
- I made enquiries with the Council and considered the information it provided.
- I sent a draft decision to Mrs X and the Council and considered their comments.
What I found
Legislation and policy
Consumer Rights Act 2015 – Schedule 5
- Schedule 5 of the Act gives investigatory powers to enforcers and specifics the purposes for which, and the circumstances, in which, those powers may be exercised.
- Section 14 gives enforcers the power to ask for information by a notice. The information provided under this section cannot be used in any criminal proceedings against the person who provided the information.
- Section 23 gives the enforcers the power to enter premises without a warrant. However, enforcers cannot use this for entry into premises used mainly as a home.
- Section 28 gives enforcers the power to seize and detain goods other than documents. Section 29 gives enforcers the power to seize and detain documents required as evidence.
- Section 28 and 29 also notes an officer must have regard to any relevant provision about the seizure of property made by a code of practice under the Police and Criminal Evidence Act (PACE) 1984. The relevant code of practice is PACE Code B.
PACE Code B
- Section 7.9C sets out that material must be returned to the person from whom it was seized, expect when it is clear some other person has a better right to it. The Code is silent about how the material must be returned.
Criminal Justice and Police Act 2001
- Section 50 of the Act allows for the seizure and removal of property found on the premises where it is not reasonably practicable to examine, search or separate at the scene. The item must be something the officer is allowed to search for.
- Section 58 sets out that material must be returned to the person from whom it was seized, except where it is clear some other person has a better right to it. The legislation is also silent about how the material must be returned.
Trading Standards enforcement policy
- This is the Council’s policy which details the Council’s Trading Standards service enforcement responsibilities.
- The policy highlights the Council has discretion to decide whether to investigate consumer complaints or other reports or findings of non-compliance.
- The policy notes the Council has several sanctions available to it, including prosecution. The policy says the Council will consider prosecution for offences contrary to regulation 12 of the Consumer Protection from Unfair Trading Regulations 2008.
The Council’s complaints procedure
- The Council has a two stage complaints procedure. At stage two, the Council will appoint an officer, independent from the service being complained, to complete an investigation.
- Mrs X lives in Property A with her husband, Mr X. Property A is a three storey, mixed-use property. Mrs X’s business is on the ground floor. The other two floors are where she lives with Mr X.
- In June 2018, the Council received a report which identified a list of website developers that were suspected of designing websites that were misleading and could therefore have assisted others in committing criminal offences. Mr X was one of these website developers.
- Between August and October 2018, the Council reviewed the websites created by Mr X. The Council found many of the websites had information on, or failed to give necessary information, which could constitute a criminal offence under the Consumer Protection from Unfair Trading Regulations 2008. The Council noted Mr X had been advised of the requirements of the Act twice in 2015 and once in 2018.
- In November 2018, the Council completed checks which showed all mail from Mr X’s business address was forwarded to Property A. The Council also confirmed Property A was the address given when Mr X signed up for his business address. The Council also confirmed Property A was the address used by Mr X when registering domains for websites he created.
- In February 2019, the Council completed checks on Property A and established Mrs X owned the property. The Council said its checks on the property also showed there was only one address for property A. It said there was no separate address for Mrs X’s business.
- The Council said an officer completed a visit to Property A to find out whether there were other entrances to the property, aside from the front entrance which led to Mrs X’s business.
- The Council also said its officers could not see into the rear of Property A because there was a high fence which blocked visibility. The Council officer also entered the business to check if there was an entrance inside which gave access to the flat. The Council said the officer could not see if there was.
- Mrs X said the rear of her property is only bounded by a normal garden fence and gate. She said visibility is unobstructed at eye level. She said her entrance to her flat was through the rear of the property.
- In March 2019, the Council applied for a warrant to search Property A. The Council noted within the application that it had reasonable grounds to believe Mr X had committed offences under Regulations 9, 10 and 12 of the Consumer Protection from Unfair Trading Regulations 2008.
- The Council said an application for a warrant was the most appropriate action because it was investigating an alleged criminal offence. The Council said it did have other powers to get the information, but those powers were not appropriate.
- The Council executed the warrant in March 2019. Council officers entered Property A through the entrance on the ground floor. The Council searched the property and removed several items from the property. Some of these items belonged to Mrs X.
- The Council said officers decided it was necessary to seize Mrs X’s property because they may have contained material related to the investigation. The Council said its officers could not discount the property at the time. The Council also explained there was a shared office space and it was not easy to distinguish whether equipment was used for Mrs X’s business or Mr X’s business.
- Mrs X said the female officer who dealt with her during the search was rude and aggressive. There is video footage of the search. In some of the footage, female voices can be heard in the background. The footage does not cover the whole search.
- The Council asked Mrs X to collect her property from its office a few days later. Mrs X said she should not have had to collect her property and the Council should have delivered her property back to her.
- Mrs X also said the officer who dealt with her when she collected her property was rude. The Council said its officers acted professionally and appropriately.
- Mrs X made a complaint about the Council’s actions in April 2019. The Council responded to her complaint at stage one in May 2019. Mrs X was unhappy with the Council’s response and asked the Council to respond to it at stage two.
- The Council officer who responded to Mrs X’s complaint at stage two was head of a different service, separate to trading standards services. Mrs X felt the investigating officer reported to the head of trading standards services and was therefore not independent.
- In November 2019, the Council confirmed it was not taking any further action against Mr X.
Officers did not execute the warrant correctly because officers entered through her business entrance
- The evidence suggests Property A is a single, mixed-use property. Mrs X’s business is on the ground floor of the property. Mrs X lives in the other two floors above her business.
- The address listed on the warrant was for Property A. This meant officers had authority to enter Property A. I accept Mrs X says the entrance to her flat was from the rear of the property. However, there is nothing within the warrant, or in legislation, which sets out what entrance should be used to enter a property.
- As Property A was a single property, I do not find fault with the Council for entering the property through the front entrance. While I accept this entrance led to Mrs X’s business, the entrance is still ultimately an entrance for Property A.
- As officers had authority to enter Property A, I do not find fault with the Council for using the entrance which led to Mrs X’s business.
Officers took her property illegally because the warrant was for her husband’s business, not her business
- The relevant powers for seizing and detain property is provided by section 29 and 28 of Schedule 5 of the Consumer Rights Act 2015, and Section 50 of the Criminal Justice and Police Act 2001.
- These powers are broad. Section 29 of Schedule 5 of the Consumer Rights Act 2015 confers powers for officers to seize and detain any documents needed as evidence. Similarly, Section 50 of the Criminal Justice and Police Act 2001 allows officers to seize and remove property, which they are allowed to search for, which they cannot examine at the scene.
- This means officers have discretion to decide what documents are needed as evidence and what material it could not examine at the scene. Therefore, I cannot find fault with the Council’s actions because I consider its actions to be in line with legislation.
The Council made her collect her property when it should have returned the property to her
- Section 58 of the Criminal Justice and Police Act 2001 notes material must be returned to the person from whom it was seized, except where it is clear some other person has a better right to it. The legislation is silent about how material must be returned. PACE code B sets out the same requirement and is also silent about how material must be returned.
- Therefore, I cannot find fault with the Council’s decision to ask Mrs X to collect her property. This is because the Council can decide on the method of returning property it has seized as the relevant legislation and code of practice is silent on the matter.
Complaint about a Council officer
- There is conflicting evidence about the behaviour of the Council officer during the search of Property A. Mrs X’s evidence is the officer was rude and aggressive. The Council’s evidence is the officer’s actions were appropriate in the circumstances.
- There is video footage of the search. I can hear background discussion in some videos. While I do not know who those voices belong to, I am satisfied the tone of the voices were neither rude nor aggressive. However, I do accept the footage does not cover all the search and therefore it is possible other conversations were not captured.
- I invited the officer to comment on the complaint, but I did not receive any comments. Therefore, I have not been able to consider the officer’s account of what happened.
- Mrs X also complained about the officer when she went to collect her property. Again, there is conflicting evidence regarding what happened as the Council says its officer’s actions were appropriate. There is no other evidence which is available for me to consider.
- As there is conflicting evidence, I cannot make a balanced finding on what happened.
The Council did not follow its own policies and procedures before it sought a warrant
- The evidence shows the Council was investigating offences allegedly committed by Mr X when it applied for the warrant.
- The Council explained it could have obtained information from Mr X by way of a notice under section 14 of Schedule 5 of the Consumer Rights Act 2015. The Council said this option was not appropriate because it would not have been able to use any of the information in any potential criminal proceedings against Mr X.
- I am satisfied the Council has properly considered why this route was not appropriate.
- I am also satisfied it was not appropriate for the Council to have used an entry notice under Section 23 of Schedule 5 of the Consumer Rights Act 2015. This was because that power cannot be exercised in a premise used wholly, or mainly, as a dwelling.
- The Council also has its own internal policy about enforcement action. The policy notes the Council uses discretion when deciding whether to investigate and that the Council has a wide range of sanctions available to it, including prosecution.
- The policy states the Council will generally consider prosecution when there are offences contrary to regulation 12 of the Consumer Protection from Unfair Trading Regulations 2008. The Council was investigating Mr X for offences contrary to regulation 12. Therefore, the Council’s decision to consider prosecution was in line with its policy.
- Based on the evidence, I do not find fault with the Council’s decision to get a warrant. This is because it has discretion to decide what enforcement action to take and it has explained why it was not appropriate to use its other powers to get information. This showed the Council properly considered its options before deciding to get a warrant.
The Council’s complaint handling
- Mrs X said the Council did not appoint an independent person to investigate her complaint at stage two. The Council’s policy states the Council will appoint an officer who is independent of the service being complained about to complete an investigation.
- The evidence shows the officer who responded to Mrs X’s complaint at stage two was head of a different service. The Council said this officer was not part of Trading Standards department. I accept the Council’s evidence and I am satisfied this was in line with the Council’s complaints procedure.
- I also recognise and acknowledge Mrs X remains of the view the officer who investigated her complaint was not independent of the Trading Standards department. However, I am satisfied her concerns have been addressed in any case as the Ombudsman has independently investigated her complaint and reached his own conclusions.
- I find no fault with the Council’s actions. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman