Epping Forest District Council (16 010 319)

Category : Environment and regulation > Health and safety

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 complaint

  1. 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.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. 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.

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What I found

  1. 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.

Key facts

  1. 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.
  2. In later emails Mr X complained about further issues:
    • 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.
  3. In the weeks that followed, an Environmental Health Officer (EHO) visited and inspected the Superstore’s car park three times, met the Store Manager and followed this up with emails. The EHO noted that many of Mr X’s concerns were ongoing maintenance issues which the Store Manager was addressing. He found no evidence of some of the issues Mr X had complained about, and he did not think some of them posed a significant risk. The EHO did not think that all the issues Mr X had complained about were health and safety matters.
  4. The EHO thought that delivery lorries parking close to the pedestrian crossing was dangerous. But he did not think this could be prevented as deliveries are an essential function, could not be done any other way, and any remedial action would not be proportionate to the actual risk. The EHO assessed the issues he considered to be health and safety matters using the EMM described in paragraph 4.
  5. The EHO kept Mr X informed of the action he took and his findings. He told Mr X he was satisfied with the action the Superstore was taking or proposed to take, and he said that formal action could not be justified. The EHO said he would monitor progress on an adhoc basis.
  6. Mr X was not satisfied with the EHO’s actions. He continued to complain that lights were not working, and bollards and shopping trolley covers were broken, amongst other things. The EHO told Mr X that the Store’s Duty Manager inspected the car park every day. He said that minor maintenance issues were dealt with by the store’s maintenance team, while more major issues were processed by the Superstore’s head office.
  7. In his correspondence with the Ombudsman Mr X said the Council failed to formally record the correct number of health and safety hazards in the Superstore’s car park. He explained that the Council did not record all health and safety hazards on the EMM and so it under-recorded the hazards. Mr X said that, as a result, the Council failed to take formal action against the Superstore and so the danger to the public continues. He would like the Council to revisit the car park, record the correct hazards, and then decide whether to take action.
  8. In response to my enquiries the Council provided details of Mr X’s considerable email correspondence with the EHO and its complaints team.
  9. In response to the draft decision Mr X said that the Superstore had not addressed many of issues he had complained about. He repeated his request for the Council to reinspect the car park.

Analysis

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Final decision

  1. I have completed my investigation and do not uphold Mr X’s complaint for the reasons given in paragraphs 14 to 17.

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Investigator's decision on behalf of the Ombudsman

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