Summary: The Council failed to make written records about its decision to move footpath barriers closer to Ms X’s home. The failure to keep records did not affect the Council’s decision to move the barriers or, therefore, the position Ms X found herself in. The Council agreed to review its practices for keeping written records of its decisions.

The complaint

1. Ms X says the Council, without consultation, moved barriers on a footpath closer to her home. The Council said it moved the barriers following a crime and after contact from the police. Ms X says the barriers are not fit for purpose as they do not prevent unauthorised use of the path; make her home vulnerable to crime; and are a focus for noise and other anti-social behaviour. Ms X wants the Council to remove the barrier and or provide effective security for her home. Ms X also wants the Council to consult residents in the future before installing barriers on land near peoples’ homes.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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. Where we find fault, we must also consider whether that 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), 26A(1) and 34(3), as amended)
3. 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

4. I have:

• considered Ms X’s written complaint and supporting papers;
• talked to Ms X about the complaint;
• asked for and considered the Council’s comments on the complaint
• shared the Council’s comments with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered their responses.

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What I found

Background

5. Councils have legal powers to improve public roads and paths. These improvement powers include providing rails, barriers and fences to safeguard people lawfully using a road or path.
6. Councils also have a general legal duty, when providing services, to do all they reasonably can to prevent crime and disorder.

What happened

7. Many years ago, the Council placed barriers in a public footpath near Ms X’s home. The barriers were to deter use of the path by mopeds and motorbikes. Recently, the Council, without consulting local people, moved the barriers so they were closer to Ms X’s home.
8. Ms X complained to the Council because it did not consult her about moving the barriers. Ms X said the barriers put her home at risk from crime and anti-social behaviour. Ms X also said the barriers were ineffective in deterring use of the path by off road bikers.
9. In response to the complaint, the Council said:

• following a crime, the police asked it to move the barriers where they would not put nearby land at risk of a similar crime;
• it chose the new barrier position because it was away from access points to nearby land;
• it had not consulted people before moving the barriers as ‘the aim was to design out an opportunity to commit a crime’;
• it (and the police) had received no reports of anti-social behaviour; and
• it had asked the police to visit Ms X to discuss her concerns.

10. Ms X wrote to the police for details of the officer that had told the Council to move the barriers after a crime took place. The police wrote to Ms X and said its records did not show any officer had said the barriers had been used in a crime.
11. Representatives of both the Council and the police visited Ms X. The Council then wrote to Ms X (and sent copies to police representatives). The Council said:

• it considered effective security measures existed at Ms X’s home and the police had given her advice about how to further deter crime;
• a recheck of records showed one report of anti-social behaviour, which Ms X made after it had responded to her complaint; and
• it would not move the barriers again as doing so could not prevent unlawful access to Ms X’s home.

12. Ms X came to the Ombudsman and said either the Council or the police were not telling the truth about the barriers connection with a local crime. Ms X also said there was no point along the footpath where the barriers would not put nearby land at risk of crime.
13. In responding to the Ombudsman, the Council, in summary:

• said it worked closely with the police dealing with neighbourhood crime and anti-social behaviour and much contact was informal and not recorded in writing;
• confirmed, while it held no record of the call, the police had telephoned and asked it to move the barriers after a crime took place;
• said, as a police request and involving community safety, the barrier work was a ‘high priority’ for ‘urgent’ action;
• said its officer and a contractor visited the site before it moved the barriers;
• said it had considered, and rejected, both removing the barriers and placing them in another position before deciding on the new position;
• explained why it considered the new position for the barriers was different to the original and addressed the crime issue;
• said it did not consult on the proposed move as the decision was based on professional judgement and aimed at reducing a repeat crime;
• said the lack of anti-social behaviour reports or further crimes showed the barriers continued to be an effective deterrent, including to off road bikers; and
• said the contractor’s invoice for the barrier work was evidence of the cost to the Council of acting on the request from the police.

Consideration

14. At the centre of this complaint is the Council’s decision to move barriers in a footpath near Ms X’s home. There is no dispute the trigger for moving the barriers was a nearby crime. However, Ms X points to inconsistencies in the information she received from the Council and the police about the link between the barriers and that crime.
15. I have carefully considered the information provided by Ms X. As I understand it, the police said its records do not show it told the Council the barriers were used in the crime. I have seen no evidence the police told Ms X they did not contact the Council about moving the barriers after a crime had taken place. And, the evidence I have seen includes emails copied to both the police and the Council. It also shows representatives of the Council and the police visiting Ms X’s home/the footpath. I find the balance of the evidence therefore suggests the Council did respond to a request from the police to move the barriers.
16. I have considered what the Council says about the number of police and other agency requests it receives and how this affects its record keeping. Given the Council’s overall responsibilities and budget, the work to move the barriers, and its cost, may have been relatively small. An invoice, showing costs incurred by the Council does not explain how or why it has made a decision leading to those costs. And, moving the barriers affected specific residents and that impact on those residents was foreseeable. I therefore find the Council fell below acceptable administrative standards in not making and keeping a written record of its decision making before moving the barriers. So, while I recognise the challenges faced by the Council, I find fault here.
17. Ms X also points to the Council’s failure to consult residents before moving the barriers. I have seen no evidence the Council was subject to any statutory duty to consult before it moved the barriers. The barriers had been in place for many years. So, the Council was not proposing to introduce a new feature along the path. In moving the barriers to any new position, there would have been an impact on other peoples’ land. The Council made a site visit before deciding where to move the barriers. That is a step I would expect a council to make to ensure any new position continued to deter unlawful use of the footpath and addressed the crime issue raised by the police. So, while I recognise why Ms X may have wanted the Council to consult her about any move, I do not find the Council at fault in not consulting residents.
18. I also considered what Ms X says about the barriers putting her home at risk of crime and anti-social behaviour. In responding to Ms X’s complaint, the Council checked and found, other than a recent report from Ms X, no anti-social behaviour incidents recorded over the last year. The Council, with the police, also visited Ms X in response to these concerns. I recognise Ms X did not find the advice given by the police or the Council’s comments about access to her home satisfactory. And yet, the steps already taken by the Council to address these concerns of Ms X are reasonable and proportionate. I therefore do not find fault in how the Council has responded to these points.
19. I have considered whether the Council fault I currently identify at paragraph 16 caused Ms X injustice that I should now look to put right. The Council’s responses to Ms X (and now the Ombudsman), satisfactorily explain how and why it decided to move the barriers to their current position. I have not seen evidence to suggest that, if the Council had made written records of contact from the police and about its decision to move the barriers, that decision would have been any different. On that basis, I do not find the Council’s failure to make and keep suitable records caused Ms X injustice. Without the fault, Ms X would still have found herself in the same position, that is, with the barriers moved closer to her home (see paragraph 2).

Agreed action

20. I do not find fault causing injustice to Ms X. However, the Council agreed (within three calendar months of this decision) to review how it handles service requests from partner agencies. The aim of the review being to identify cases having a substantive impact on individual residents. And, in such cases, to record in writing, with reasons, the Council’s decision on the request. The Council also agreed to put the results of the review, with appropriate information and training given to officers, in place within two weeks. The Council also agreed to provide the Ombudsman with evidence of the review and its implementation within four calendar months of this decision.

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Final decision

21. I completed my investigation, finding fault but no injustice to Ms X, on the Council agreeing the recommendation at paragraph 20.

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Investigator's decision on behalf of the Ombudsman