The Ombudsman's final decision
Summary: Mr X complained the Council failed to properly deal with reports he made about highway obstruction and anti-social behaviour. He complained a subsequent Community Trigger Review request was not dealt with properly. We found there was delay and the Council did not communicate or record its decisions appropriately. The Council did not consider all the issues Mr X raised when making its decisions. The matter was subsequently resolved when it agreed to a Community Trigger Review, but this too was delayed. We found Mr X was put to avoidable time and trouble pursuing the matter.
The complaint
Mr X complains the Council failed to properly consider a report he made about a makeshift bench which was obstructing the highway. He complained that officers did not carry out a proper risk assessment, they did not take legal or other advice, and they failed to consider the impact the bench would have.
the Council failed to properly record or communicate its decision about the matter. Mr X says he was misled that action was being taken when this was not the case.
the Council failed to properly deal with reports Mr X made about anti-social behaviour.
that when he asked the Council for a Community Trigger Review, the Council initially refused, contrary to its threshold criteria for holding a review.
the Council failed to hold an appeal hearing following an initial panel decision about the Community Trigger.
that a complaint he made to the Monitoring Officer about the Community Trigger process was not responded to and there was delay in responding to Mr X’s requests for information about the Community Trigger Review process.
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) 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)
How I considered this complaint
I considered Mr X’s complaint and the information he provided. I asked the Council for information and considered its response and how it dealt with the issues and Mr X’s complaint.
Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
What I found
Highway Act 1980 Section 130 of the Highway Act places a general duty on Highway Authorities to prevent an obstruction of the highway that affects the public’s use of it.
Anti-social behaviour Councils have a general duty to take action to tackle anti-social behaviour (ASB). ASB can take many different forms and councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, a council may approach complaints as an environmental health issue, a planning or licensing matter or by using powers under the Anti-social Behaviour, Crime and Policing Act 2014.
Community Trigger The Anti-Social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include councils, the police and others) should decide whether the local threshold has been met.
If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the Anti-social behaviour statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
What happened In June 2020 Mr X made a report to the Council about a makeshift bench and large plant pots placed on a footpath at the end of a cul-de-sac where he lives. Mr X stated they obstructed the highway, there were potential safety issues and they were not in keeping with the area.
The Council visited the following day and discussed the issue with some of the other residents. A brief case note recorded the visit and that a specific resident understood the need to remove the obstruction.
In mid-July Mr X made a further report. He stated, he understood the Council had required those responsible to move the items by 7 July. This had not happened. He added that the items had become a focal point for other residents congregating, this led to noise and items were sometimes added, such as chairs and children’s toys. Mr X reported that residents held a gathering. This involved a barbeque and brazier and tables were set out for food and drink in the street. He considered this was anti‑social behaviour.
There is evidence the Council carried out a number of further site visits during August and one in early September. Photographs were taken but no notes were provided to us recording the visits.
Mr X was in correspondence with highway officers and community safety officers. He chased various officers on numerous occasions to respond and explain their view on the issues he reported. There was often delay in responding to Mr X, prompting a further contact to follow up. While there was correspondence with Mr X about his reports, the Council did not explain its position or the decisions it had taken.
On 2 September Mr X requested a community trigger review because the issues hadn’t been resolved. This was acknowledged on 5 September. The Council stated it would say whether the request met the criteria within 12 working days, by 20 September.
On 7 September officers visited the cul-de-sac and explained to the resident concerned that the bench and other items should be removed from the highway.
On 9 September Mr X made a formal complaint. This was because it had not provided information he asked for, there was failure to respond to his correspondence in a reasonable timescale and he had not been told when he could expect a reply.
On 11 September Mr X reported a further street party of a smaller scale and duration to that in July. The bench was a focal point and tables and other items were placed on the highway. Mr X reported noise and a lack of social distancing.
The bench and plants were dismantled on 11 September but remained on the footpath. A mural was added at a later date. The remaining elements of the bench were removed on 13 October. Follow up visits by officers decided not to take action in respect of the mural.
Response to Mr X’s complaint & Community Trigger Review Request On 2 October the Inspection and Enforcement Manager responded to Mr X’s complaint. He apologised for the delay in doing so. He stated officers had spoken with the resident responsible for the bench. He told Mr X that the obstruction of the highway was minimal due to the cul-de-sac location and in view of the exceptional circumstances caused by the COVID-19 pandemic, the Council would be taking no further action at that time. The officer stated the Council had previously agreed they would allow the items to remain for the rest of the summer. The Council stated there appeared to be support from most residents. The Council recognised that support was not universal, so this is why officers visited the resident concerned in early September and asked them to remove the items now the summer was drawing to an end. The Council told Mr X if a formal request was made for a bench in spring next year, the Council would consider it. The manager offered a sincere apology to Mr X for not keeping him informed as the matter progressed and for not responding to his emails.
Mr X chased the response to the Community Trigger request on a number of occasions. On 5 October, the Council stated it had 1.5 Community Safety Officers covering 18 council wards and they primarily managed and led on high-risk cases with multi-agency involvement. However, it acknowledged that Mr X’s complaints of delay were justified and an apology was provided for not meeting the correct timescales.
In terms of the Community Trigger, the Council stated it was not designed to address breaches of COVID-19 legislation. It stated this should be reported to the Police. In respect of the other issues Mr X raised, it stated these matters should be addressed further through the Council’s corporate complaints process. The Council expanded on its reasons for not using the Community Trigger on 9 October. It stated Section 104 of the ASB Police and Crime Act 2014 required three reports before the trigger could be used. They must relate to ASB. On the evidence presented, the reports were in regard to COVID restrictions and not ASB. The law also referred to (a) persistence (b) harm or potential harm caused and (c) adequacy of response to that behaviour. The officer stated the breaches of COVID guidelines in the circumstances reported did not meet this threshold. While they might have caused annoyance to the individual and concern for others, that was not the ASB threshold.
In response Mr X noted his reports covered other issues, such as noise, the placement of items on the highway, blocking of the street etc. He explained his view that the Community Trigger threshold was met.
Mr X also replied to the Council about his complaint. Mr X stated he appreciated the apology, but he was unhappy that the Council had not told him during the summer of 2020 that it had decided not to act, whereas it had told the resident who placed the bench on the highway what its decision had been. Mr X stated there was significant loss of amenity and disruption from noise and the position of the bench which he did not think had been considered. He asked further questions about the decision and when it was made.
On 2 November, the Council confirmed there was no definitive date when it decided not to act on the bench. It had kept it under review. There was also no written record of the decision. However, it stated it had visually inspected it at site visits and was satisfied risk was considered appropriately. There was no legal advice needed or taken. In respect of considering a formal application at a later date, the council conformed it had the power to place benches on the highway under Section 115b of the Highways Act 1980.
Mr X’s correspondence was considered by the Monitoring Officer. As a result, the Council wrote to Mr X on 18 December, agreeing that it would consider the Community Trigger at panel meeting no later than January 2021.
It was eventually considered at a panel meeting in February 2021. The Council stated the delays were caused by pressures on the Council from COVID-19 and exacerbated by the levels of sickness at the time.
Mr X made representations to the panel ahead of its decision. The panel found that decisions about the highway obstruction were in line with relevant legislation. The panel noted the issues Mr X reported had not been dealt with promptly and the communication between departments could be improved to ensure issues affecting multiple departments were better monitored. It noted Mr X had not addressed the issues of concern with neighbours directly, so it may have been that other residents were unaware of the impact. The report made six recommendations around oversight of responses to such complaints, signposting complainants to appropriate guidance, encouraging neighbours to engage with each other directly and increasing awareness of the needs of people working at home within communities. It stated departments should respond in a timely fashion if further complaints were raised. For example, if a bench appeared.
In March 2021, following the decision Mr X requested a review of the panel’s decision. I understand Mr X was concerned about the council’s intentions should a bench re-appear on the highway. This was because no timely intervention took place in 2020.
The Council recognised that a complaint Mr X made to the Monitoring Officer in 2021 was not handled as it should have been. It stated other officers were involved in responding to Mr X’s complaint at the time but in hindsight it ought to have sent a formal response to Mr X’s letter to the Monitoring Officer.
Correspondence about the matter continued during 2021 and the Council provided a final response to Mr X’s complaint on 1 February 2022. In points 3 and 4 of that letter the Council agreed to conduct a review of the Community Trigger Panel’s decision.
The Council provided a copy of a letter to Mr X dated 25 March 2022. The Council stated, after reviewing the panel’s decision it found the decision was thorough. The Council responded by explaining the action it would take if there were a repeat incident and the bench reappeared. The Council re-iterated that the timescales for the Council’s response were unacceptable and the review had taken too long to conclude. It reiterated its apology for this and stated there had been learning from the complaint.
Was there fault by the Council I found there was fault in the way the Council dealt with the highway obstruction report Mr X raised during Summer 2020. It did not explain the decisions it had taken on his reports. The Council later said it had decided that the obstruction was de-minimis. The Council was entitled to decide not to take action to remove the bench and associated objects. However, it appears the Council allowed the situation to drift rather than taking a firm decision about what action it should take. This was fault. In addition, the Council’s decisions about the highways issue were not recorded or communicated properly. The Council should keep appropriate records so that it is clear what it has decided, when and why. The lack of records and failings in communication were also fault.
While there are no specific notes to show a risk assessment was carried out, I do not consider it is likely that risk was ignored. This was not a complex obstruction issue, and officers would be in a position to consider risks associated with the items on the pavement as a routine part of the site visits that they carried out. It was for the Council to decide if it needed legal advice.
It is not clear that the Council properly considered the ASB reports that were associated with the bench. The Council told us it decided the reports of ASB were not sufficient to warrant prioritisation at a busy time. However, correspondence on the council’s files indicated that officers attending to consider the highways obstructions had not taken account of associated gatherings and noise. It does not appear these issues were considered elsewhere. This was fault but it is not clear that any specific action would have been warranted had the Council addressed these points as well as the actual obstruction.
There was also delay in responding to Mr X’s communications at various points.
I note that the obstruction and ASB issues arose during the COVID-19 pandemic when the Council’s resources were under strain. This may well have affected the time available to deal with such things. However, this would not prevent communication of its position and its decisions, nor the appropriateness of record keeping.
There was further fault in the way the Council handled Mr X’s request for a Community Trigger Review. The Council does not appear to have considered all of the issues Mr X raised when initially deciding if his request met the threshold. The decision focussed on the references to alleged breaches of social distancing, required as a result of the COVID-19 pandemic. However, Mr X had alleged noise and disturbance from gatherings in the street during 2020 and given other examples. This was not properly considered. When the Council went on to consider it in 2021, this was delayed. There was more delay in responding to his request for a further review that occurred in 2022. While I understand this was frustrating for Mr X, the key issue of concern – the bench and associated objects had been removed back in October 2020, so the nuisances themselves were not ongoing.
I note that the Council has apologised to Mr X for the failure to keep him informed, and the delays in dealing with the matters he raised. Given there was repeated delay and failure to communicate decisions at the time they were made, I consider Mr X was put to time and trouble in pursuing the complaint that could have been avoided and this warrants a remedy.
Agreed action
Within four weeks of my final decision, the Council agreed to pay Mr X £150 to recognise the time and trouble and frustration caused by the failure to properly respond to Mr X’s reports.
Final decision
There was fault by the Council. I have completed my investigation on the basis the Council has agreed to remedy the injustice to Mr X.
Investigator's decision on behalf of the Ombudsman