Rossendale Borough Council (19 005 685)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 24 Feb 2020

The Ombudsman's final decision:

Summary: Ms B complains about the behaviour of a pest control officer acting on behalf of the Council. She also complains about the Council’s handling of her insurance claim and her complaint. The Ombudsman finds avoidable delay by the Council and its insurer in dealing with Ms B’s claim. The Council has agreed to apologise to Ms B, pay her £300 in recognition of the frustration and time and trouble she was put to and pass her claim to its insurer who will issue a decision on liability within three months.

The complaint

  1. Ms B complains about the behaviour of a pest control officer acting on behalf of the Council when he visited her home to deal with a rodent infestation. She also complains about the Council’s handling of her insurance claim and her complaint.

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What I have investigated

  1. I have investigated the administrative actions of the Council and of its insurer, which was acting on its behalf.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  3. 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 considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
  2. I have written to Ms B and the Council with my draft decision and considered their comments.

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What I found

Key facts

  1. Ms B contacted the Council in November 2018 explaining she believed there was a rodent in the space between her bedroom floor and the downstairs ceiling. The Council does not have its own pest control department and so engaged another council’s pest control service which Ms B paid for.
  2. A pest control officer visited Ms B’s property on 3 December 2018. Ms B says the officer moved one of her stereo speakers and damaged it. She says he put poison down two holes in the wooden floor without her knowledge. Ms B says she had only wanted his opinion and discussion of the options and would not have agreed to the use of poison because she has an inquisitive dog and did not want anything that posed a health risk or which could result in a dead rodent under her floor. She says when she told the officer this, he became aggressive and intimidating, arguing with her and repeatedly stating her dog would not be able to get to the poison. She repeatedly made it clear that she did not agree to the use of poison but the officer then went on to put some bait on wires in the bathroom which he also said the dog would not be able to access.
  3. Later Ms B found her dog amongst some granules of rat poison on her bedroom floor. The dog was rushed to the pet hospital and treated for three weeks before eventually recovering. This was extremely distressing for Ms B who did not know if her dog would survive. She also received a significant invoice for the treatment.
  4. Ms B wrote to the Council complaining about what had happened. The following day the manager of the pest control service visited her. He provided a statement to the Council. He said the officer who visited Mrs B’s property had an unblemished record and had always behaved in a courteous and professional manner. He said Ms B did not tell the officer she did not want poison used until he had already put it down. He did, however, accept the officer should have cleaned and removed the spilt granules from the floor before leaving the property.
  5. On 7 December 2018 the Council’s environment manager, Officer X, wrote to Ms B advising her to write in detailing the costs she incurred, any quotations received and the reasons she believed the Council was responsible for those costs. He said this would be passed to the Council’s insurer to decide on the validity of her claim. He explained there was “some difference of opinion” about what had happened.
  6. On 24 January 2019 Ms B sent a letter of claim to the Council seeking reimbursement of the vet’s fees, the cost of replacing the speakers and compensation for distress and inconvenience. Officer X confirmed receipt of the letter on 25 January 2019 and said it had been forwarded to the finance department for it to be dealt with through the Council’s insurance process.
  7. On 1 February 2019 Officer X passed Ms B’s letter to the head of Finance, Officer Y, and asked him to put it through the Council’s insurance process. Officer Y wrote to Ms B on 18 February 2019 stating his view that the Council could not be held liable for her claim. He said that, if Ms B wished to pursue a claim, she should seek her own advice and provided details of the Council’s insurance company and policy number.
  8. Ms B responded on 28 February 2019 stating she had contacted the Council’s insurers who told her it was for the Council to instruct them following notification of a claim. Ms B pointed out that her letter of 24 January 2019 was her letter of claim and asked Officer Y to forward it to the insurer.
  9. In later correspondence Officer Y confirmed Ms B’s letter had been sent to the Council’s insurers but it was for her to prove liability.
  10. On 7 May 2019 Ms B wrote to Officer Y asking for an update as she had received no communication from the insurers. Officer Y said it was for Ms B to prove liability and, until this was done, the matter would not progress with the insurers. He confirmed the Council disputed liability.
  11. Ms B asked Officer Y to clarify what he meant by “proving liability”. Officer Y responded suggesting she seek her own legal advice. Ms B said she had been advised that the normal process was for the insurers to take the Council’s instructions and then respond to her, as the claimant. She asked why this had not happened. Officer Y responded stating “my previous advice stands. I again repeat that the Council does not consider itself to have any liability in this matter (that would also be my instructions to our insurers)”.
  12. On 13 May 2019 Ms B wrote to the Council stating that she made a complaint in December 2018 and had referred to it in her “letter of claim sent 24 January 2019”. She said she had not received any response and wished to escalate the complaint to stage 2. She said she also wished to complain about the finance department’s failure to handle her claim properly. The Council acknowledged Ms B’s complaint the same day.
  13. On 23 May 2019 Officer Y wrote to Ms B again providing contact information for the insurers.
  14. On 21 June 2019 the Council wrote to Ms B confirming her complaint had been forwarded to the relevant officer who would investigate and respond within 10 working days.
  15. An officer from the operations team responded at stage 1 of the Council’s complaints procedure on 24 June 2019. Ms B was unhappy that the Council had responded to her complaint at stage 1 despite her having escalated it to stage 2 on 13 May 2019.
  16. The Council’s Head of Operations sent a stage 2 response to Ms B on 27 June 2019 explaining that her initial correspondence had been treated as a potential insurance claim rather than a complaint. It was only treated as a complaint after Ms B stated in her email of 13 May 2019 that she wished to make a formal complaint following which the Council responded at stage 1 on 24 May 2019 and at stage 2 on 27 June 2019.
  17. The Council’s stage 2 response again advised Ms B to seek advice and process her claim accordingly using the contact details for the insurers already provided. The response set out a reference number for Ms B’s claim. The Council accepted Ms B should have been given a full response to her complaint of 13 May 2019 sooner and apologised for that. It accepted the response sent to Ms B on 23 May 2019 did not include all the information that was eventually provided on 24 June. It also said the insurers could only deal with the matter if Ms B contacted them directly.

Analysis

The behaviour of the pest control officer

  1. I am satisfied the Council has properly investigated Ms B’s concerns about the behaviour of the pest control officer. It contacted the pest control service whose manager visited Ms B to discuss the complaint and spoke to the pest control officer to obtain his version of events. The officer’s version of what happened is different to Ms B’s version.
  2. Where there is a clear difference between two versions of events, the Ombudsman could not reach a safe conclusion about precisely what happened in the absence of tangible evidence. There is no independent evidence to support Ms B’s allegations which are, essentially, a matter of her word against that of the officer. In these circumstances, I do not intend to pursue this issue further.

The Council’s handling of the insurance claim

  1. Ms B says the Council has failed to deal with her insurance claim properly. She says it told her to contact its insurers but, when she did so, they told her it was for the Council, as the client, to submit the claim to the insurers. It said that, once it had received the claim from the Council, it would process it and contact Ms B if it required further information and advise her of the outcome. She never heard anything further from the insurers.
  2. The Council does not have a formal documented claims handling procedure. It says its custom and practice in circumstances where it disputes liability is to advise the claimant to seek their own independent legal advice in pursuing a claim.
  3. While the Council was correct to advise Ms B to seek independent legal advice, it is for the Council, and not Ms B, to forward her claim to the Council’s insurer. Ms B’s relationship is with the Council and not the insurer. Ms B submitted her claim to the Council and it should have forwarded this to the insurers
  4. Officer Y told Ms B he had passed her claim to the insurers. But the Council has been unable to provide evidence that he did so.
  5. If the Council had forwarded the claim, the insurers should have requested evidence from the Council and Ms B in order to reach a decision on liability. This did not happen.
  6. Ms B’s claim was received by the Council in January 2019. More than 12 months later no decision has been made on liability. Neither the Council nor the insurers acting on its behalf have progressed the matter. None of the delay was attributable to Ms B. I consider that, on balance, it should have been possible for the insurer to reach a view on liability within three months of Ms B making the claim. The avoidable delay in progressing the matter was fault.
  7. As a result of the delay, Ms B was caused frustration and put to time and trouble in trying to progress matters towards resolution including making a formal complaint to the council and to the Ombudsman.

The Council’s handling of Ms B’s complaint

  1. Ms B says the Council delayed in responding to her complaint causing additional distress and inconvenience.
  2. The Council has explained Ms B’s correspondence was not initially dealt with as a complaint but as an insurance claim. I find no grounds to criticise this. Ms B’s correspondence of December 2018 and her letter of 24 January 2019 referred to her ‘claim’. She also later referred to her letter of 24 January 2019 as “my letter of claim”. Regardless of the wording used by Ms B, I find the Council was entitled to treat the correspondence as an insurance claim.
  3. When Ms B wrote to the Council on 13 May 2019 referring to a “formal complaint” it dealt with it as such and issued a stage 1 response on 23 May 2019. The Council accepts some delay here. It also accepts the response was inadequate and apologised. The stage 2 response was detailed and issued without delay.
  4. I consider the Council’s apology is sufficient remedy for the poor quality of the stage 1 response and the delay in sending it. I do not therefore propose to pursue this issue further.

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Agreed action

  1. The Council has agreed that, within one month of this decision, it will:
    • issue a formal apology to Ms B and pay her £300 in recognition of the frustration and time and trouble she was put to as a result of its failure to progress her claim; and
    • pass Ms B’s claim to its insurer and respond in a timely fashion to any enquiries the insurer may make.
  2. The Council has also agreed that, within three months of this decision:
    • its insurer will issue its decision on liability; and
    • the Council will review its procedures to ensure a clear pathway of communication is in place between it and its insurer and that all relevant staff are clear about what is expected of them in relation to providing and actioning information relating to claims made against it.

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Final decision

  1. In the absence of independent evidence, the Ombudsman cannot reach a view on Ms B’s complaint about the behaviour of the pest control officer.
  2. The Council/its insurers were at fault in failing to progress Ms B’s claim.
  3. The Council was also at fault in providing a late and inadequate response to Ms B’s complaint at stage 1. But it has provided an adequate remedy for the injustice caused by this.
  4. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Parts of the complaint that I did not investigate

  1. I did not investigate the question of liability for Ms B’s claim. That is a matter for the Council’s insurer to decide. If liability is not accepted and Ms B wishes to contest this, she may do so in court and it would be reasonable for her to do so.

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Investigator's decision on behalf of the Ombudsman

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