Summary: Mr C complains the Council failed to respond properly and take appropriate action in response to his reports about a nearby construction site. Mr C says he is at risk using the pavement due to the inadequate street lighting which particularly affects him due to a visual impairment and he has suffered unacceptable nuisance for longer than necessary. The Ombudsman has found fault by the Council in the way it responded to some of Mr C’s reports but considers the agreed actions of an apology and staff training are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to respond properly and take appropriate action in response to his reports about a nearby construction site including:

• scaffolding obscuring a streetlight
• bonfires on site to destroy debris and waste being brought to site
• pests
• unfenced site allowing vandalism by children
• road being blocked by tipped sand/cement
• road being blocked by trucks – sometimes all day
• loud music and swearing on site

2. Mr C says because of the Council’s fault, he is at risk using the pavement due to the inadequate street lighting which particularly affects him due to a visual impairment and he has suffered unacceptable nuisance for longer than necessary.

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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. 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)
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 considered some information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

7. Mr C emailed the Council on 17 September 2019 about the highway being blocked from building works at a nearby development. This was due to a load of sand being delivered and which was not cleared for two days.
8. Section 149 of the Highways Act deals with the removal of things deposited on the highway (often a pile of hard core or soil). This is a matter for the Highway Authority which is the County Council here.
9. The Council raised the issue with its building control team and confirmed internally it would be a matter for the County Council as the Highway Authority. Mr C contacted the Council again on 21 September about the matter. The Council says its building control team spoke to Mr C by telephone to confirm the matter was one for the Highway Authority. This conversation is referred to in an internal email of 23 September but the Council has not provided a contemporaneous record of the contact. Given the nature of the report it would have been good practice to provide a quicker response even if this was to signpost Mr C to the appropriate Authority but, on balance, I do not consider this constitutes fault. I would remind the Council of the importance of maintaining adequate records of how it responds to reports. I also note Mr C reported only one instance of the highway being blocked by building deposits which was removed after two days. It is unlikely a quicker referral to the Highways Authority at the time would have achieved a better outcome for Mr C.
10. Mr C emailed the Council on 15 November about a near miss with a cyclist with no lights and reported a streetlight was being obscured by scaffolding at the above development. Mr C explained he had also reported the matter to the County Council but had been told it may take up to 28 days for the matter to be addressed. Mr C sought the Council’s help with getting the County Council to act with more urgency. The Council has not provided any evidence it responded to Mr C’s report. Although I consider the failure to provide a response constitutes fault, I do not consider this caused Mr C a particular injustice as he was already in contact with the relevant Authority.
11. Mr C emailed the Council on 6 February 2020 to say the developer continued to block the road on and off when delivering to the site. Mr C also repeated his concerns about the street light which continued to be obscured by scaffolding. Mr C also set out his view of the building practices being used by the developer. Mr C also reported pests from the site being cleared and nuisance from fires being lit to burn wood and shrubs and music being played on site. The Council responded to Mr C the same day to confirm the blocking of the road would be a matter for the County Council as Highway Authority. The Council has not provided any evidence of providing a response about the issues of nuisance being reported. This is fault.
12. Mr C’s local councillor asked about the responsibility for the obscured street light on 13 March. The Council confirmed the County Council issued the licences for scaffolding and were responsible for street lighting.
13. The County Council contacted the Council on 17 March to say the scaffolding was not authorised and the street light was being obscured and sought the contact details of the site owner or contractors. The Council stated it could not provide the contact details due to data protection issues but would contact the site contractor and ask them to contact the County Council directly. I am unclear why the Council could not direct the County Council to the publicly available information on its planning website. However, I note Mr C had previously contacted the County Council directly about the issue of the street light being obscured.
14. Mr C emailed the Council in July to report anti-social behaviour from parking on double yellow lines associated with the development site. The Council responded to Mr C in July to confirm this would not be treated as anti-social behaviour but its parking enforcement team regularly visited the area and had issued 33 penalty notices since January. The Council confirmed it would continue to patrol the area and issue notices when a parking infringement was found.
15. I am satisfied the Council has provided a proportionate response to Mr C’s reports of inconsiderate parking through the regular patrols of the area by its parking enforcement team and the issuing of penalty notices.
16. However, I consider the Council did not provide a timely and appropriate response to his report in November about the obscured street light or his subsequent reports of pests and nuisance in February 2020. I have to consider what, if any, injustice this caused Mr C.
17. As set out above, I do not consider the Council’s failure to respond to Mr C’s report about the obscured streel light caused him a particular injustice as he was already in contact with the County Council as the relevant Authority. However, it is difficult to assess if contact by the Council with the developer in response to Mr C’s reports of nuisance from smoke, music and pests may have achieved an improvement at the time. I note Mr C referred to one instance of nuisance from smoke and pests being disturbed when the site was cleared rather than an ongoing problem. Mr C also suggests in his correspondence that the music being played during the day would be an issue for shift workers rather than causing him a particular issue. In the circumstances, I consider an apology with the actions below would provide a suitable remedy to Mr C.

Agreed action

18. The Council has agreed to:
1. write to Mr C to apologise for not providing a timely or appropriate response to his report in November about the obscured street light and its failure to respond properly to his subsequent reports of pests and nuisance in February 2020 within one month of my final decision;
2. ensure it provides a timely response or appropriate signposting to any such future reports; and
3. provide training to front line staff dealing with reports from the public to ensure they are referred to the appropriate department and followed up to ensure an appropriate response is provided or signposted accordingly within three months of my final decision.

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Final decision

19. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman