Summary: There was no fault in the Council’s decision to introduce a Public Space Protection Order. For this reason, the Ombudsman has completed his investigation.

The complaint

1. Mr X complains the Council did not prove there was anti-social behaviour with regard to motor home, caravan or van owners before it introduced a Public Space Protection Order (PSPO) in November 2018.
2. Mr X also says the action taken by the Council was not proportionate as it banned sleeping in motor vehicles and caravans overnight throughout the district.

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The Ombudsman’s role and powers

3. 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)
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

5. I reviewed the complaint and background information provided by Mr X and the Council.
6. I also sent a draft copy of this decision to each party for their comments.

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What I found

7. The Council started planning for a consultation on creating a new PSPO in September 2017. A report authorising consultation was drafted and presented to the Cabinet in October 2017. The Council launched the public consultation in November 2017. It already had a PSPO in place for the control of dogs. It decided to consult on the following additions:
• Nuisance begging in the vicinity of cash machines and shop entrances.
• Sleeping in vehicles on the highway or in any public open space between 11pm and 7am.
• Drinking alcohol in a public space after being told by police or an authorised officer to stop.
• Cycling, skateboarding or using any vehicle on Bexhill promenade or on any pavement in a reckless manner.
• Fly tipping household or business waste on the street, including in or beside a litter bin.
• Removing or attempting to remove fossils from the beach or foreshore.
8. The public consultation ran for nine weeks from November 2017 to January 2018. It was promoted with a press release and on the Council’s social media sites. The Council sought views from the public on whether the identified issues were of concern or not; if there was a persistent or regular problem; and whether or not a PSPO was seen as part of the solution.
9. The Council also asked residents about the actual order; how it was written or phrased; and whether the content would be effective in addressing the issues.
10. At the conclusion of the public consultation exercise, the Council decided to include the issue of sleeping in vehicles in its proposal for the PSPO. The Cabinet met in April 2018 to debate the proposal, including the consultation result.
11. The Cabinet decided to approve the Order subject to a final consultation with the Police, the Police and Crime Commissioner and the highway authority.
12. It then created the Order in November 2018.
13. Mr X first complained to the Council in April 2018. He referred to government guidance on the creation of PSPOs. Guidance states a local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met. The conditions being that:
• activities carried on in a public space within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or
• it is likely that activities will be carried on in a public place within that area and that they will have such an effect.
14. Mr X says these conditions were not proven by the Council because it could not provide any record of anti-social behaviour regarding motorhome, caravan or van owners.
15. Mr X said the Council’s proposed order was not proportionate in keeping with government guidance which suggests the power to create these orders should be used proportionately to tackle anti-social behaviour and not to target specific groups or the most vulnerable.
16. Mr X said he had been in contact with the councillor who proposed the Order as well as the leader of the Council. He asked both councillors for evidence of anti-social behaviour relating to motorhome, camper van, caravan or van owners. He said neither councillor provided any evidence. Mr X said a friend made a freedom of information request to the Council, which revealed there had been a total of three telephone calls between 2015 and 2017 relating to motorhomes but the calls did not relate to anti-social behaviour.
17. Mr X said the councillors told him ward councillors received complaints about motorhome owners by telephone and email, but the emails had not been retained under data protection laws. Mr X disputed this explanation.
18. Mr X said the proposed Order amounted to misuse of the Council’s power.
19. The Council sent a response in April 2018. It noted Mr X’s disagreement with the proposed Order but said the Order had not been implemented and consultation was still underway.
20. It said the Cabinet took the decision to create an Order following public consultation as well as consultation with town and parish councils. It noted the views and experiences of councillors were also taken into account.
21. It said the Order if made would be enforced with discretion by the Council and will primarily be aimed at people who reside for long periods of time on roads. It said it would use the additional powers only where necessary and using common sense. It gave an example of lorry drivers making overnight stops and said it would not take enforcement action automatically in such cases.
22. The reply did not address Mr X’s claim that there was no evidence of anti-social behaviour before the Order was proposed.
23. Mr X contacted this service in January 2019 after the Order had been implemented. He said the Council introduced an Order which was not proportionate according to government guidelines. He said the Council introduced a ban on sleeping in vehicles overnight for the whole district for the sake of less than half a dozen vans parked in and around Bexhill. Mr X said the law was being used in a discriminatory and almost racist way towards people who live in motorhomes.
24. The Council sent a response in March 2019. It said the Cabinet made the decision to create the Order based on recommendations but also public views. It said it acted not to be discriminatory or racist but because it considers there is a negative impact to residents from people living in vehicles near their homes. It said people who live in vehicles also use local services but do not pay for them through council tax.

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Analysis

25. Mr X complains the Council acted disproportionately by introducing the PSPO. He considers the Council has failed to show the conditions for the introduction of a PSPO, as set out in the Government guidance, have been met.
26. The guidance sets two criteria for the introduction of a PSPO. These are, in summary, that there is either an existing problem, or the authority has reason to believe a problem might arise in future.
27. Mr X asked the Council for evidence it had received complaints or reports about anti-social behaviour connected with overnight sleeping in vehicles in the defined area. The Council’s response was that it had received some reports by phone and email, but the latter had since been deleted for data protection reasons. I appreciate why Mr X is unconvinced by this evidence.
28. However, the guidance says local authorities may also introduce a PSPO if they consider it likely a problem will arise in future. So the lack of evidence of reports to the Council does not mean it is acting outside of the guidance by introducing the PSPO.
29. The Ombudsman’s role is to review the Council’s adherence to procedure when making decisions. The Ombudsman is not an appeal body, and does not have the power to make operational or policy decisions on the Council’s behalf. The Ombudsman cannot uphold a complaint simply because a person disagrees with a Council decision.
30. In this case, I can see no fault in the procedure followed by the Council to introduce the PSPO. In the absence of fault, the Ombudsman has no power in law to question the merits of the Council’s decision. I appreciate Mr X does not agree with the decision, but this does not give me grounds to uphold his complaint.
31. In either case, while the PSPO gives the Council the power to take action against people sleeping overnight in public or vehicles, this does not mean any person doing so will automatically be subject to sanction. It is clear the Council sought to introduce the Order in order to tackle nuisance behaviour, and it has assured Mr X it will use common sense in enforcing the it. So I do not consider the Order’s existence, alone, to represent an injustice to Mr X.
32. This said, I am somewhat critical of the Council’s handling of Mr X’s concerns. His question, about the justification for including overnight sleeping in vehicles, was reasonable, and the Council did not give a clear response when addressing his complaint.
33. However, while this is a shortcoming, in the absence of wider fault or injustice, I do not consider this to be a significant matter in isolation and I will not find fault for this reason.

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Final decision

34. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman