Mole Valley District Council (18 009 826)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 28 Mar 2019

The Ombudsman's final decision:

Summary: The Council acted without fault and proportionately in responding to concerns about grass cutting and about concerns over health and safety shortcomings of contractor staff.

The complaint

  1. Mr X complained on his own behalf and on behalf of the local Residents’ Association about the performance of the Council's landscape contractor, in that the grass around their properties had regularly not been cut to the required specification, areas which should be cut were missed and the contractor failed to adhere to health and safety requirements by not wearing protective clothing.
  2. Mr X said this was unacceptable as it was only year 4 of a 7-year contract and he and the Residents should not be expected to endure the appalling service for another 3 years.
  3. Mr X said this caused him unnecessary time and trouble in pursuing these issues and some unnecessary stress as he saw no likely improvement in the near future.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have spoken with Mr X and considered written information from him.
  2. I have considered comments and information provided by the Council, including the contract document covering grass mowing for the area around Mr X’s home.
  3. I have 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. Mr X lives within a suburb which has green spaces that the Council is responsible for maintaining.
  2. The Council sub-contracts this work out to Contractor G, who have held the contract since 2014. The contract runs for seven years in total.
  3. Mr X says from the start of the contract there were issues about the regularity and quality of the grass cutting in the area. He made his first formal complaint to the Council in November 2017 after raising the issue informally over many months.
  4. The Council sought an improvement from the contractor and the grounds were cleared for the winter.
  5. In May 2018 Mr X made a further formal complaint to the Council as he said the grass had only been cut once since the start of the season in late April and many areas had been missed.
  6. The Council investigated and upheld Mr X’s complaints. It took a co-operative approach to try and ensure the contractor delivered the grass cutting in line with the contract requirements and in May the contractor completed the grass cutting satisfactorily.
  7. The Council pursued matters with the contractor over the summer but in September Mr X made a further complaint. The Council again sought a resolution with the contractor and received reassurances of increased resources for the grass cutting and closer monitoring of the work by the contractor’s management.
  8. Mr X then brought his concerns to the Ombudsman.

Analysis

  1. The Council has a contract with Contractor G to maintain open spaces in the district. It is a wide-ranging contract covering all aspects of open space management and maintenance.
  2. Within the contract are specifications for grass cutting for different types of green space, including general grass. This is required to be between 25mm and 50mm.
  3. The contract also provides a process by which the Council can seek compliance with the standards set out within the contract. This involves a series of notices to the contractor to comply, later ones incurring financial penalties, and ultimately the possible suspension and termination of the contract.
  4. The Council has explained the contract is administered through monthly meetings with Contractor G as well as regular telephone contact between officers and the contractor team.
  5. Mr X has raised repeated concerns about the standard of grass cutting on the open grass areas around his home since 2017.
  6. The Council has responded to each of these without delay. It has raised the matter with Contractor G and received reassurances that the issues would be addressed. This has provided improvements but then the cutting has become intermittent and poorly executed again.
  7. The Council has monitored the improvements and has carried out site visits a number of times. It has met with Mr X and the Contractor to discuss the concerns and issues.
  8. During 2018 there were certain mitigating factors affecting Contractor G’s performance. The Spring was unusually wet, preventing access onto areas to mow, which created a backlog of work in April and May. The Contractor did not have the resources to meet that unexpected backlog. The long and hot summer led to an unusual number of unauthorised encampments in the district, and the Contractor was responsible for clearing these sites once the encampments had been removed. Again, this took resources away from other work.
  9. The Contractor also reported problems with its mowers but did not have back-up machines to call on when this happened.
  10. The Council upheld Mr X’s complaints at Stage 2 of it complaints process, and received reassurances from Contractor G that matters would be addressed.
  11. In September 2018, when Mr X made a further complaint, the Council warned Contractor G it would invoke the formal processes within the contract if it did not take action to stop the repeated failures to meet the contract requirements on grass cutting in Mr X’s area.
  12. The Contractor agreed to weekly cuts in Mr X’s area and better monitoring to meet the contract specifications for the rest of the cutting season.
  13. The Council reports the new year has started positively with early topping-off of grass and the Contractor has invested in additional equipment.
  14. The Council says it has always actively responded to Mr X’s concerns and has worked with Contractor G to try and ensure it complied with the contract specifications. I have seen evidence of regular meetings overseeing the contract as a whole and Mr X’s area has been discussed regularly, with Contractor G providing assurances it would improve its performance.
  15. The Council has used a co-operative approach to resolve the poor grass maintenance, which was successful in part. It allowed Contractor G time to put things right and recognised the significant mitigating factors during 2018 which affected this process.
  16. The Council has explained it will use the formal mechanisms within the contract to manage the contract going forward. Ending the contract for poor performance would not be risk-free for the Council and it has therefore taken the approach to try and resolve the difficulties through negotiation whilst the contract is in place.
  17. Mr X also complained the Contractor failed to ensure its staff followed proper health and safety processes while working in his area.
  18. The Council discussed this with the Contractor and it agreed to provide better oversight of this issue.

Findings

  1. I do not find fault in the Council’s actions. It has responded properly to concerns from Mr X and has worked with both him and the Contractor to try and secure improvements. I do not find fault in a negotiated approach to this issue. While I recognise Mr X and the other Residents had an expectation their public grass areas would be kept to a certain height, longer grass in itself did not cause them significant harm.
  2. The Council has taken a proportionate approach to resolve issues on one part of a very wide-ranging maintenance contract. During 2018, this contract was placed under strain by exceptional weather and other events, and the Contractor has struggled to meet its requirements.
  3. While the Council could have invoked the formal mechanisms within the contract earlier, I consider it was justified in trying to resolve matters through negotiation, given the mitigating factors during 2018.
  4. I am reassured that the Council recognises it may need to employ the formal processes to manage the contract going forward, if the Contractor does not maintain the improvements noted early in this current season.
  5. I understand Mr X’s concerns about the health and safety of the contracting staff, however this does not have a direct impact on him. The Council noted the concerns and raised the matter with the Contractor, so I do not find any fault in the Council’s action in this respect. It is for the Contractor to manage health and safety issues for its own staff.

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Final decision

  1. The Council acted without fault and proportionately in responding to Mr X’s concerns about grass cutting in his area and about his concerns over health and safety shortcomings of contractor staff.
  2. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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