Decision : Upheld
Decision date : 02 Dec 2021
The Ombudsman's final decision:
Summary: Mr B complained the Council’s waste collection contractors regularly drove onto his property and, on some occasions, caused damage. He said the Council and the contractor did not adequately address the recurring problem or remedy the damage. He said he had to purchase additional CCTV equipment so he would have a record of any further problems. There was fault which caused injustice to Mr B.
- I refer to the complainant as Mr B. He complained the Council’s waste collection contractors regularly drove onto his property and, on some occasions, caused damage. He said the Council and the contractor did not adequately address the recurring problem or remedy the damage. He said he had to purchase additional CCTV equipment so he would have a record of any further problems.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the complaint and documents provided by Mr B and spoke to him I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
What I found
- Mr B lives on a private driveway. There are two other properties on the same driveway. The driveway is owned by a management company comprising the three owners.
- There was an incident of damage to the driveway and surrounding land in early 2020. The contractor accepted liability and it was resolved.
- In September there was a further incident of damage which Mr B believed to be caused by the contractors but they did not accept liability without photographic/CCTV evidence. Mr B complained to the Council.
- The Council said insurance for such claims was held by the contractor so it could do nothing more. Mr B replied saying there were strong grounds for believing the damage to have been caused by the contractor’s vehicle and this was part of a wider issue of repeated entry on to the land by the contractors. He provided CCTV evidence of a recent incident. The Council maintained its position that it was for the contractor and its insurers.
- Over the early part of 2021 Mr B reported further instances of the contractors coming on to the private driveway. The Council responded at stage 2 of its complaint process in April. It said one incident had been caused by an agency driver who did not know the arrangement that had been agreed. Mr B responded saying there had been a number of incidents and this showed the matter was not resolved.
- There are two issues here: damage to the driveway which Mr B believes was caused by the contractors but which the contractors have not accepted liability for, and ongoing use of the private driveway by the contractors to turn.
- There is no fault in the Council referring a claim of damages as a result of alleged fault by its contractors to their insurers. But the Council cannot wash its hand of the matter entirely as the contractor is acting on behalf of the Council.
- We cannot determine claims of damages – that is a matter for the courts. But we can consider whether there has been fault by the Council or its agents. The contractors dismissed Mr B’s claim as he had no direct evidence of the damage occurring. This was not adequate consideration. The Council and its contractors should consider all the information Mr B provided about the circumstances of the incident including what the tracks indicate about the type of vehicle and the timing of the incident. If it still does not accept liability then it would be reasonable for Mr B to pursue the matter in the courts. Given the amount of the claim it is likely it is something that could be considered as a small claim which would be accessible to Mr B.
- The wider point is about the ongoing incursions on to the private driveway by the contractor’s vehicle.
- In November 2020 it was agreed between Mr B, the Council and the contractors that all the residents would leave their bins at the end of the driveway so the contractors wouldn’t have to come on the driveway at all. That has remained the arrangement. There have been a number of incidents over 2021 where the vehicle has come on to the driveway. On one occasion it caused some damage which the contractor agreed to rectify. In responding to the draft of this statement Mr B referred to a recent incident but before that the last report was in April. The arrangement is, on the whole, working and but the contractors, and the Council if necessary, will need to respond to further issues raised by Mr B.
- The Council and its contractors will consider all the circumstances of the incident in September 2020 and decide whether to accept liability or to refer the matter to its insurers. There should be a full explanation given to Mr B within the next two months.
- There was fault which caused injustice to Mr B.
Investigator's decision on behalf of the Ombudsman