Summary: Mrs B complained about the Council’s handling of its claim that her property encroached on to a public footpath and her complaints about this matter. We found the Council at fault in how its officers dealt with Mrs B’s case and how it considered her first complaint about this matter. The Council had agreed to make a payment to Mrs B in recognition of the injustice caused to her.

The complaint

1. The complaint, who I refer to as Mrs B, complains:

• the behaviour of the Council’s officers was inappropriate and disproportionate when dealing with concerns her property had encroached on to a public footpath. She says staff were rude, obstructive, failed to provide her with information and communicated poorly;
• the Council took too long to reply to her requests for information, advice and to act to regularise the matter;
• the Council did not follow its own complaints procedure when she complained about the conduct of its officers in 2020; and
• the Council’s officers broke COVID-19 regulations at a meeting on 8 December 2020.

Mrs B says if the Council had provided her with the correct information sooner, she would have saved money on legal fees and avoided making Freedom of Information (FOI) requests. She says the Council’s actions caused her avoidable time, trouble, frustration and distress.

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What I have investigated

2. I have not investigated Mrs B’s concerns that documents provided by the Council were misleading and I explain my reasons for not doing so in the final paragraph of my statement.

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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. 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)
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. As part of my investigation I considered:

• information provided by Mrs B;
• information provided by the Council;
• information provided by the Parish Council;
• the Council’s complaints policy;
• the COVID-19 Regulations in place on 8 December 2020; and
• The Seven Principles of Public Life (also known as the Nolan Principles).

7. I set out my initial thoughts on the complaint in a draft decision statement to Mrs B and the Council and invited both parties to comment.

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What I found

The Seven Principles of Public Life (referred to as the Nolan Principles)

8. These apply to all public office holders including councillors and council officers and outline the ethical standards they should adhere to. The seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

Norfolk County Council Complaints Policy

9. This policy explains how the Council will deal with complaints. It says it will deal with complaints about legal processes using the legal route. It also says that where there appears to be no merit in further investigation at a higher stage of the complaint’s process, the complainant will be advised they can refer their complaint to the Ombudsman.

COVID-19 Restrictions

10. On 2 December 2020 the Government announced it was reintroducing a tiered system of COVID-19 restrictions in England. Norfolk was in Tier 2.
11. Under Tier 2 regulations no more than six people from different households could meet indoors or outdoors. Work and education were exempt from the limit.

What happened

12. In 2016 Mrs B bought a property.
13. On 12 June 2019 the Council wrote to Mrs B saying it believed her property encroached on to a public footpath. It asked Mrs B to contact it to discuss the matter and arrange a meeting at her home.
14. The letter recognised Mrs B may not have known about the encroachment when she brought the property and it reassured her it was not necessarily looking to reinstate the full width of the footpath. It said it might consider a retrospective Stopping Up Order whereby the land would cease to be part of the footpath.
15. Mrs B met with a council officer. She says the officer was pushy, aggressive and told her not to seek legal advice or discuss the matter with anyone locally.
16. Mrs B disagreed with the Council’s view her property encroached on the public footpath. She said the land in question became part of her property following a legal easement made before she brought it.
17. On 18 July 2019 Mrs B sent an email to the Council asking it questions to help her understand the Council’s view on the footpath. The Council replied the same day saying it understood the matter was a shock for Mrs B and it would answer as soon as it had the information she asked for but if there was anything pressing she could call them.
18. Mrs B responded providing further information and advising she would pass on the Council’s email to her solicitor.
19. On 19 July the Council provided a detailed reply and said it was working to find out the extent of the public footpath.
20. Mrs B replied the following day providing more information supporting her view on the footpath. She also explained the toll the matter was taking on her and her husband’s health.
21. The Council replied on 22 July offering explanations and clarifications to the matters raised by Mrs B in her earlier email.
22. Mrs B responded the same day saying not all her questions were answered. She said the footpath is acceptable to users and the parish council in its current form and so she asked why the Council was pursuing the matter. Mrs B also said the Council had secretly conducted research and not shared it with them.
23. The Council responded reiterating that it understood it was a worrying time for Mrs B and it was working to answer all her questions but this would take time. It asked if she would like answers provided piecemeal or in one go.
24. Mrs B replied asking further questions. She also proposed a solution whereby a piece of her land is used to widen the footpath. Mrs B raised concerns the footpath is poorly maintained after it passes her home and suggests this showed one rule for her and one for the Council.
25. The Council provided answers to Mrs B’s outstanding questions on 24 and 25 July.
26. During this period Mrs B made Freedom of Information requests to get information not provided by officers.
27. In August 2019 Mrs B complained to the Council about its view on the footpath and the unhelpful behaviour of officers.
28. The Council said it would not look at her complaint because it concerned legal issues.
29. Mrs B referred her complaint to us. We explained that we will not investigate as ownership of the land is a legal matter and so it is for the courts to decide. We explained that we will not investigate her concerns about officer conduct because we were not investigating the substantive matter.
30. Mrs B and her solicitor continued to question the Council’s view on the land. She involved the local parish council who supported her view that information held by the Council was incorrect. Mrs B says the parish council thought the Council had been rude and threatening to her.
31. In March 2020 the parish council wrote to the Council saying that it did not support its action to widen the public footpath. It did not respond.
32. In October 2020 the parish council wrote to the Council chasing a response to its earlier letter. The Council replied saying that it was looking to regularise the situation and not to reinstate the full width of the footpath.
33. The Council sent a further letter to Mrs B asking her to remove greenery, trees and fences from the area in question by 31 December 2020 or the Council would remove it themselves and seek repayment of its costs. It also said a Stopping Up Order must applied for by the same date.
34. Mrs B asked her local councillor for help. He arranged a meeting on 8 December 2020 when Norfolk was in Tier 2 COVID-19 restrictions. He invited himself, Mrs B and her husband, Mrs B’s parish councillor, Mrs B’s solicitor and an officer from the Council.
35. However, an extra council officer attended the meeting. Mrs B says this officer was rude and refused to leave the meeting. She says he was supported by the other council officer and both acted unprofessionally throughout the meeting.
36. The meeting resolved a Stopping Up Order would be applied for.
37. Mrs B removed the greenery, trees and fences prior to the 31 December deadline.
38. On 6 January 2021 Mrs B made a complaint to the Council about officers breaking COVID-19 restrictions at the 8 December 2020 meeting. The Council said work meetings were exempt from the restrictions.
39. During the same month Mrs B placed her property up for sale as she no longer felt able to live there because of the continuing issue with the Council. The property was sold in September 2021.
40. In October 2021 Mrs B made a further complaint to the Council about the conduct of its officers including at the 8 December 2020 meeting. The Council responded reiterating its response to her earlier complaint.
41. Preparation for the Stopping Up Order continued and was completed in December 2021.
42. Mrs B remains unhappy about the Council’s actions and complained to the Ombudsman.

Response to enquiries

43. We asked the parish councillor who attended the meeting 8 December 2020 to comment on the conduct of the Council’s officers with reference to the Nolan Principles. He replied saying he consider the officers failed to meet the principles of objectivity, accountability and leadership. He did not explain why.
44. We asked the local councillor who attend the same meeting to comment on the conduct of the Council’s officers. He confirmed that an extra officer attended the meeting. He said he believed there was some merit in Mrs B’s complaint and the matter had been a stressful experience. He recognised the footpath needed regularising but noted it was not required by anyone using it and so how it was dealt with was paramount.
45. The Council reiterated its view that an extra officer attending the 8 December meeting did not constitute a breach of COVID-19 restrictions at that time.
46. We asked the Council to provide the case file for this matter. It provided us with copies of correspondence between Mrs B and the Council and details of her January 2021 complaint.

Analysis

47. I understand Mrs B’s reasons for thinking the Council’s actions to regularise encroachment of her property on to the footpath were disproportionate. However, once the Council knew of the issue it had a duty to make sure it was resolved.
48. The early communications between Mrs B and the Council demonstrate attempts by both to find an amicable way forward. The Council acknowledged the matter was not of Mrs B’s making and recognised it was worrying and stressful for her. There is no evidence to suggest the Council threatened Mrs B with disproportionate action at this time.
49. However, the Council’s letter of October 2020 seems heavy-handed given that no action had been taken by the Council on the matter for many months and Mrs B had instigated contact at this time via her parish council.
50. Mrs B is unhappy with the conduct of the Council officers. She says they were rude, obstructive and failed to communicate properly or provide them with information. Mrs B’s local councillor say her complaint has some merit and her parish councillor says that one officer, in his opinion, failed to adhere to the Nolan Principles.
51. It also seems reasonable to conclude that Mrs B would only have made FOI requests if she was having difficulties getting documents from officers. Our enquiries of the Council asked it to provide the full file on this matter. It did not do so as documents referred to in its response and Mrs B’s correspondence are missing. This raises doubts about how information was kept on file and shared with Mrs B and others. For these reasons I find that, on the balance of probabilities, officers could have acted in a more professional manner.
52. It took from July 2019 until December 2021 to resolve the problem with the footpath. I understand that Mrs B questioned the Council’s view on the footpath and responding to her queries would inevitably protract a resolution. However, it does not account for the period between September 2019 and October 2020 when no action was taken by the Council. Nor does it explain why the matter was not passed to the Council’s Legal Department sooner. Legal action would have allowed Mrs B and the Council to put forward their respective positions for a decision to be made. Delaying on this allowed the matter to drift and caused unnecessary uncertainty to Mrs B.
53. The Council did not investigate Mrs B’s complaint of August 2020 because the issue of the footpath fell within the scope of legal processes. This is in keeping with its complaints policy and so I do not find it at fault for not investigating. However, Mrs B’s complaint also raised concerns about the actions of the officers involved in the matter. The Council should have extrapolated this part of her complaint and considered it. Failing to do so left Mrs B without any effective means of challenging their conduct. This is fault.
54. I consider the Council handled her complaints of January 2021 and October 2021 properly. The Council’s policy says it can where it sees fit stop considering a matter through its complaints procedure. The complaint was a matter of interpretation about the COVID-19 regulations in place in December 2020. I do not see that further exploration of this matter would have yielded a different outcome and so it was reasonable to refer Mrs B to the Ombudsman after its initial consideration of the complaints.
55. At the time of 8 December 2020, people could not meet in groups of more than six people from different households. Work gatherings were free from the restrictions. The meeting was for work purposes and so I do not consider an additional council officer attending the meeting to constitute a breach of the regulations in place at that time.
56. However, I do think it would have been prudent to have advised the other attendees about the addition given both the heightened fears around the spread of COVID-19 at the time and the concerns raised by Mrs B previously about the conduct of the officer in question.

Agreed action

57. Within one month of my final decision the Council will pay Mrs B £100 in recognition of the frustration, uncertainty and avoidable time and trouble caused to her by the fault we found.
58. Within three months of my final decision the Council will:

• review its procedures for cases of encroachment onto the highway to ensure residents are provided with information explaining its view and that cases progress in a timely manner;
• send a memo reminding complaint handling staff to address complaints about officer conduct even when the substantive matter complained about its outside the scope of the complaints process; and
• provide customer service training to the officers involved in the complaint to help prevent a repeat of the problems identified.

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Final decision

59. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

60. Mrs B has expressed concern that documents the Council presented in support of its view were misleading. I have not investigated these matters because the accuracy of the documents forms part of the legal dispute which has been considered by the courts.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman