Summary: Mr C complains about the Council’s investigation into his complaint about a civil enforcement officer stopping his car and the officer’s subsequent behaviour. Mr C says the Council unreasonably delayed its investigation which contained incorrect information and was inadequate which caused him unnecessary inconvenience and outrage. We have found fault in the Council’s complaint handling but consider the action already taken with the agreed action of reviewing the complaint procedure and staff training provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the Council’s investigation into his complaint about a civil enforcement officer stopping his car and the officer’s subsequent behaviour. Mr C says the Council unreasonably delayed its investigation which contained incorrect information and was inadequate.
2. Mr C says because of the Council’s fault he has suffered unnecessary inconvenience and outrage.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party information. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

Key events

7. Mr C complained to the Council at the end of October 2019 about a Civil Enforcement Officer (Officer A) gesturing for him to pull over while driving his car. Mr C says he had assumed at the time the officer flagging him down was a police officer and was concerned when the officer walked away without speaking to him. Mr C explained he left his car and followed the officer to another street to speak to him. Mr C said as the officer ignored his requests to stop and speak with him, he then whistled and shouted to get his attention. When the officer stopped, Mr C says he gave different and conflicting answers about why he had flagged him down. Mr C says the officer at first refused to provide his details or confirm who employed him. Mr C explained he later spoke to a different officer (Officer B) who had not witnessed the incident. Mr C sought the powers used to stop his car as the police had told him Civil Enforcement Officers (CEOs) had no power to stop a moving vehicle.
8. The Council replied to Mr C’s complaint in early November. The response used the wrong collar number for Officer A. The Council confirmed that it had reviewed Officer A’s pocket notebook which recorded his contact with Mr C and disputed he had gestured for Mr C to stop. The Council says it had also spoken to Officer B and both officers’ notes supported Officer A’s version of events. The Council proposed no further action.
9. Mr C contacted the Council to escalate his complaint at the end of November. Mr C raised issues about the tone and content of the Council’s response. Mr C noted the response did not include the powers used to stop him and that Officer B would not have relevant information as he had not been present at the stop. Mr C asked for the footage from the bodycam Officer A had been wearing. The Council acknowledged Mr C’s escalated complaint at the end of November.
10. Mr C emailed the Council on 7 January 2020 as he had not received a response. The Council apologised to Mr C on 9 January for the delay. Mr C emailed the Council on 13 January to say he was unhappy it had not contacted him as promised after 25 days or updated him about progress. Mr C sought a weekly update and repeated his request about the powers of a CEO to stop a moving vehicle and about whether there was available bodycam footage. Mr C chased the Council for a reply on 22 January. The Council responded the same day to apologise for the delay and that it had referred his questions to the relevant service area. Mr C highlighted he had asked about the powers of CEOs in his original complaint at the end of October 2019.
11. The Council responded to Mr C at the end of January and apologised for the delay. The Council also apologised for using the wrong collar number for Officer A in its earlier response and confirmed the correct number. The Council confirmed it had reviewed the contemporaneous pocket notebook of Officer A but there were no notes about the matter Officer B’s notebook.
12. The Council acknowledged it was at fault for saying in its earlier reply that both officer’s notes had been considered when this was not the case and apologised. The Council confirmed CEOs were not trained or authorised to stop vehicles and had no powers to do so. The Council also confirmed Officer A had not activated his bodycam and so there was no footage to provide. The Council said it had found no evidence Officer A had acted inappropriately and was satisfied Mr C’s complaint had been investigated appropriately.
13. The Council has provided a copy of the extract from both Officer A and Officer B’s notebooks for the day of the incident giving rise to Mr C’s complaint. Officer B’s notebook does not contain any record about Mr C. It is accepted by all parties that Officer B did not witness Mr C’s contact with Officer A.
14. Officer A’s notebook records his contact with Mr C. Officer A has recorded that Mr C shouted, ‘excuse me’ and when he turned round Mr C asked him not to walk away when he was trying to speak to him. Officer A’s notes say he explained he had not previously heard Mr C and that Mr C asked why he had gestured for him to pull over before walking away. Officer A’s notes say he explained he had not gestured to Mr C for him to pull over and provided his collar number and that he worked for the Council when asked before moving on. The notes describe Mr C as being quite agitated.

My consideration

15. Officer A did not activate his bodycam during his contact with Mr C. The Council’s policy about the use of body cameras makes clear these are used at the discretion of the officer but their use must be justifiable, necessary and proportionate to the circumstances. The guidance provided sets out examples of when it may be appropriate to start recording which include where a member of the public is approaching in an aggressive or threatening manner but also says an officer should only start recording if they feel in danger or threat or if they feel a crime is about to be committed. Whilst it would have helped investigate Mr C’s subsequent complaint, I cannot say it was fault for Officer A not to activate his bodycam as it was at his discretion whether to do so.
16. There is a direct conflict of evidence between what Mr C says happened in October 2019 and Officer A’s contemporaneous notebook entry. There is no body cam footage, voice recordings or third party witness statement about what happened. In these circumstances it is not possible for me to decide even on a balance of probabilities what happened.
17. However, I do not agree with the Council’s assessment that it investigated Mr C’s subsequent complaint appropriately.
18. The Council has confirmed it does not have a record of the interviews of both officers completed during its investigation of Mr C’s complaint. When a complaint is received about an officer’s conduct, I would expect there to be a contemporaneous record of the interview with the officer concerned and any others interviewed as part of the investigation. The Council’s failure to keep an adequate record of its interviews with Officer A and Officer B is fault.
19. The Council has accepted that it used the wrong collar number for Officer A in its earlier complaint response. The Council has already apologised for this typographical error and I do not consider it caused Mr C a particular injustice.
20. 
    There was also delay in the Council providing a response to Mr C’s escalated complaint between the end of November 2019 and the end of January 2020. This response provided the information requested about CEO powers to stop moving vehicles and body cam footage albeit belatedly. The Council has already apologised for this delay which I consider provides a suitable remedy and we would not seek more.
21. The Council also accepts it wrongly stated Officer B’s notebook entry formed part of its investigation. The Council’s initial response stated that both officers’ notes supported Officer A’s version of events. This was not the case as Officer B did not make a record of his contact with Mr C and did not witness the earlier exchange with Officer A. Although the Council has apologised to Mr C for its incorrect statement, I consider this to be a significant error which has understandably caused Mr C to question the outcome of the Council’s investigation.
22. In the circumstances, I consider the Council should take further action which would also help to reassure Mr C about the way the Council would consider any future complaint.

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Agreed action

23. The Council has agreed to review its complaint procedures and staff training (including any necessary retraining) for those involved in investigating complaints to ensure investigations are robust and evidence based and that adequate records are kept including of interviews and provide the outcome of this review to the Ombudsman within three months of my final decision.

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Final decision

24. I have completed my investigation as I have found fault by the Council but consider the agreed action above with the action the Council has already taken is enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman