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Medway Council (20 008 096)

Category : Environment and regulation > Refuse and recycling

Decision : Upheld

Decision date : 19 Mar 2021

The Ombudsman's final decision:

Summary: Mrs F complained to the Council about the conduct of the contractors who were reversing onto her driveway and behaving in an antisocial manner. The Council apologised to Mrs F and agreed to carry out actions to remedy her complaint which Mrs F says it did not do. She also complained about the Council’s handling of her complaint. We find fault with the Council’s handling of the complaint. It has agreed to apologise to Mrs F and pay her £150 for putting her to the time and trouble of complaining and for the upset caused by antisocial behaviour.

The complaint

  1. Mrs F complained to the Council about the conduct of contractors and the Council’s handling of her complaint. She says it failed to carry out recommendations from its investigation where it proposed to:
  • Clean her driveway, due to refuse collectors urinating on it;
  • Tell the refuse crew not to drive or reverse onto her driveway and only walk on the land to collect waste and move it to the public highway; and
  • Monitor the refuse crew’s collection methods and ensure they behaved appropriately.
  1. Mrs F says the anti-social behaviour caused her distress and she was put to avoidable time and inconvenience in following up several complaints with the Council.  

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 spoken with Mrs F and considered the correspondence in support of this complaint.
  2. I have made enquiries with the Council and considered its response and documentation it provided in support.
  3. I have sent a draft to Mrs F and the Council and have considered their comments before making my final decision.

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What I found

  1. The Council outsources its waste and refuse collections duties to a contractor (“the contractor”).
  2. Mrs F complained to the Council about the conduct of waste collection contractors in April 2020. Mrs F said while collecting her refuse the Council’s contractors reversed onto her driveway without permission. Mrs F also complained she saw staff from the contractor’s crew urinating on her driveway.
  3. Mrs F says she received a response which told her that her complaint had been passed to the contractors. Mrs F said she did not receive a response from the contractors.
  4. In July 2020, Mrs F complained again to the Council about the contractors who repeated the same anti-social behaviour as before. Mrs F also said she complained directly to the contactors, but again received no reply.
  5. Mrs F’s complaint was investigated at stage one of the Council’s complaints procedure. The Council apologised and said it understood this was not the first time Mrs F had complained. It said it had raised the complaint with the contractors and told Mrs F the contractors would conduct an internal investigation. The Council says the contractor told the Council it would take the complaint seriously and take suitable disciplinary action if necessary or offer staff training.
  6. Mrs F said she had been satisfied with the response received from the Council. However, she made a further complaint to the Council in September 2020 after a further incident where contractors repeated the same antisocial behaviour. Mrs F said the Council’s action had not resolved her complaint and she asked it to consider her complaint at stage two of its complaints procedure.
  7. The Council investigated the complaint at stage two and spoke with the contractors. The stage two letter said the contractors took the issue very seriously and agreed to:
  • Apologise and uphold her complaint;
  • Raise the issues with senior management at the company;
  • Clean Mrs F’s driveway as soon as possible;
  • Monitor the crews collection methods; and
  • Only walk onto Mrs F’s land to collect refuse.

It also found that:

  • The land Mrs F said the lorry reversed onto was privately maintained.
  1. Mrs F said these recommendations were not carried out by either the contractor or the Council. She complained to the Ombudsman in November 2020.
  2. In the reply to my enquiries, the Council and the contractor said:
  • There had been a delay with jet washing due to staffing issues, but said it had now cleaned Mrs F’s driveway;
  • The staff member responsible for the antisocial behaviour had been spoken to and advised about their behaviour and Mrs F’s complaint;
  • It had advised crews to only walk onto Mrs F’s land to collect refuse;
  • It was monitoring the behaviour of the crews and had not witnessed the lorry reverse onto Mrs F’s property or witnessed any further antisocial incidents in the five weeks it had monitored the crew.

Analysis

  1. Mrs F first complained to the Council in April 2020. The conduct of the contractors fell below what would be expected. This was fault. The contractor provided a service on behalf of the Council and it remained responsible for the actions of the organisation providing them. In response to her complaint, the Council accepted the behaviour of the contractor by reversing onto Mrs F’s drive and urinating onto her property caused Mrs F an injustice of distress in the form of upset.
  2. Mrs F experienced the same anti-social behaviour on at least three separate occasions and complained to the Council each time. She says she also complained directly to the contractor but said she did not received a reply.
  3. On the first occasion the Council decided to pass Mrs F’s complaint through the contractor’s complaints procedure.
  4. On receiving the second complaint in July 2020 the Council could have considered calling in the complaint and investigated it under its own complaints procedure. The Council could have arranged a meeting with the contractor and monitored the contractor’s crews thus avoiding further delay and inconvenience to Mrs F. This delay in actively investigating the complaint until after the third complaint was made is fault.
  5. I acknowledge the Council took some action, upheld Mrs F’s complaint and apologised for the behaviour of its contractor’s crews. However, it could have been more proactive in supervising the implementation of the improvement plan and crew monitoring. Its failure to do so caused further delay and caused Mrs F to continue to receive a poor service from both the Council and its contractor.
  6. This caused Mrs F an injustice for which a remedy has yet to be provided.
  7. In response to my enquiries, the Council has acknowledged and provided evidence the contractor has now carried out the agreed actions as listed above in paragraph 17. I am satisfied this goes some way to remedying Mrs F’s complaint, but I find the Council’s remedy does not fully address the injustice she experienced.

Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the service of the organisation, we have made recommendations to the Council.
  2. To address the injustice caused the Council has agreed by the 19 April 2021 to:
  • Apologise to Mrs F and pay her £150 in recognition of the distress caused by the actions and behaviour of the contractor.
  • Review the remedial action carried out by the contractor and provide Mrs F with a written update that these actions have been completed.
  1. The Council should inform the Ombudsman when it has completed these actions.

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Final decision

  1. I find fault with the Council’s handling of Mrs F’s complaint. This has caused an injustice to Mrs F. The Council has agreed to remedy this so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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