Decision : Not upheld
Decision date : 07 Mar 2017
The Ombudsman's final decision:
Summary: the Council has properly investigated Mr X’s reports of health and safety hazards at a nearby supermarket superstore’s car park. The Ombudsman cannot, therefore, criticise the Council’s decision not to take enforcement action.
- The Complainant, who I have called Mr X, complained that Epping Forest District Council failed to properly investigate health and safety hazards he reported at a nearby supermarket superstore’s car park.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. 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. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I have:
- considered the complaint and the information provided by Mr X;
- made enquiries of the Council and considered the information it provided; and
- written to Mr X and the Council with my draft decision and given them an opportunity to comment.
What I found
- The Enforcement Management Model (EMM) is a system created by the Health and Safety Executive to provide officers with a framework for making consistent enforcement decisions. It takes account of various issues including the risk of serious injury. The overarching principle is that any enforcement action should be proportionate to the health and safety risks and the seriousness of the breach.
- In June 2016 Mr X emailed the Council to complain about several issues at a nearby supermarket superstore’s (the Superstore) car park which he considered to be health and safety hazards. These were:
- a speed bump did not have a sign indicating it was a pedestrian crossing, and the belisha beacons by the crossing did not work;
- plastic covers on shopping trolley shelters were broken or missing;
- the tarmac had subsided beneath many parking spaces;
- some of the lights in the car park did not work;
- some bollards were broken and had sharp edges;
- some signposts were damaged;
- some water drainage grates and block paving were damaged or loose; and
- the water tank beneath the car wash was stagnant and mosquitoes were laying larvae in the water.
- delivery lorries were parking close to the pedestrian crossing, so making it difficult for pedestrians to see past them when using the crossing;
- there was no sign at the entrance to the store to indicate the presence of a pedestrian crossing;
- some road markings were faded;
- one of the car park lights was leaning;
- food wrappers were attracting rodents;
- a broken fence;
- damaged signposts; and
- missing parts on some shopping trolleys which left sharp edges.
- I mentioned Mr X’s considerable correspondence with the Council, but I have not detailed every contact between them. The key facts are, therefore, a brief précis of what happened following Mr X’s complaint to the Council.
- I said in paragraph 11 that Mr X believes the EHO failed to formally record the correct number of health and safety hazards. The information I have seen shows that the EHO investigated and considered each of the issues Mr X reported. But he did not think that many of the issues Mr X complained were health and safety issues. So he did not include them on the EMM. He concluded that formal action against the Superstore could not be justified. These were matters for the EHO’s professional judgement and his decisions are not ones I would criticise.
- I recognise that there may be ongoing problems with bollards, lights and shopping trolley shelters, amongst other things. But it is not unusual for such fixtures to get damaged or to require replacement bulbs, for example. These are ongoing maintenance issues. Mr X alleged that some of these issues have never been resolved. The evidence does not support this view. And, in any event, the EHO is satisfied the Store Manager will deal with any issues as and when they arise.
- I am satisfied, therefore, that the Council properly investigated and considered the issues Mr X reported. So I cannot criticise its decision not to take enforcement action. I have explained the reason for this in paragraph 2. I will not, therefore, ask the Council to revisit the car park as Mr X would like.
- I have completed my investigation and do not uphold Mr X’s complaint for the reasons given in paragraphs 14 to 17.
Investigator's decision on behalf of the Ombudsman