Hartlepool Borough Council (20 010 673)
The Ombudsman's final decision:
Summary: Ms Y and four neighbours complain about the Council’s plan to remove electric gates it installed on their road in 2015. Ms Y also complains about the Council’s failure to fully remove knotweed from her property despite agreeing to do so. We do not to find fault with the Council. It is entitled to install manual gates if the current gates are not serving their purpose. Furthermore, there is no evidence the Council has agreed to eradicate the knotweed as Ms Y suggests.
The complaint
- The complainants, Ms Y and four neighbours, complain the Council intends to remove electric gates it installed on their road in 2015, despite the Council previously agreeing the gates were necessary as part of a scheme of highways improvements.
- Ms Y also complains the Council has failed to keep to an agreement it made in 2014 to eradicate Knotweed from her property.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- 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
- During my investigation I discussed the complaint with Ms Y and considered any information she provided.
- I made enquiries of the Council and considered its response. I also considered the findings of a previous LGSCO investigation in 2018 about the Council’s delay in remedying poor works behind Ms Y’s property.
- I exercised discretion to investigate some matters which Ms Y has been aware of for more than 12 months if the injustice is ongoing in nature and Ms Y was unable to complain sooner.
- I put my findings in a draft decision and the Council and Ms Y had an opportunity to comment. I considered any comments received before making a final decision.
What I found
Key background information
- Ms Y and four neighbours complain about the Council’s failure to maintain electrically powered gates on an alleyway near to their properties. The gates were installed by the Council in October 2014 as part of a highways scheme to improve a bus route. As part of that scheme the Council agreed to improve parking behind the residents’ properties. The Council entered into written agreements with all affected residents.
- The work involved setting back existing garden fences to provide residents with their own individual parking pays. The Council also agreed to install additional street lighting and an electric gate to provide access the rear of the properties. Ms Y says the gates have never been fit for purpose.
- Between 2015 and 2016 residents reported concerns to the Council about the general standard of work and problems with the electric gate. The Council agreed the gate was broken more than it was in use. The Council repaired the gate, but it continued to break. The Council installed a new gate in March 2018.
- We investigated a complaint made by Ms Y in 2017. We found fault by the Council causing injustice to Ms Y. In summary, we concluded:
- The Council took too long to resolve the unfinished works reported by Ms Y, including faults with the electric gate
- Some contractors and officers displayed a ‘poor attitude’ and did not properly communicate with the affected residents causing them unnecessary difficulties.
- The Council had a procedure in place to refer disputes to an independent expert. The Council failed to use this procedure. If it had done, some of the matters may have been resolved sooner.
- The Council failed to keep proper records of the scheme and its inspections.
- To remedy the injustice, the Council agreed to:
- Carry out works beyond what was originally agreed
- Apologise to the affected residents.
- Extend the maintenance period for the gate, which will now begin from the date of the replacement. The Council will write to the complainants to confirm once works are complete.
- Inform the LGSCO how it will improve its record keeping for future schemes.
- By the end of March 2018 complete works agreed within the individual proposals of November 2017. The Council will also check the condition of the rear wall of Ms Y’s property and make good any damage caused by excavation work.
What happened
Powered alley gate
- Ms Y complained to the LGSCO again in 2021 because she was unhappy with the Council’s efforts to maintain the powered gate. As a result of the gates not working, Ms Y and others have raised concerns about a lack of security at the rear of their properties with reports of loitering, anti-social behaviour and crime.
- Since the installation of the replacement gate in March 2018, the Council has received several reports and responded as follows:
- November 2018 Ms Y reported the gate was not functioning. The Council arranged an inspection of the gate which found damage to the motor. The Council arranged for the replacement part to be ordered and fitted in December.
- August 2019 Ms Y reported that a nearby school uses the alley gate to access their new car park. Ms Y also reported damage to the gate. Upon inspection the gate was found to have sustained damage with wires hanging from behind the mechanism.
- September 2019 the Council received a further report of damage to the gate. The Council arranged for a service visit, a repair and tests. Upon inspection the contractor found damage to the cabling and joint box and undertook a temporary repair.
- October 2019 Ms Y reported the gate was not working again and expressed concerns about the school’s continued use of the gate for deliveries and parent parking. The Council attended a meeting with the school on 7 October 2019 to discuss residents’ concerns. An engineer attended to the gate the following day to carry out a full repair. During the repair, the engineer found evidence of further damage to the bracket.
- November 2019 the Council wrote to residents to advise that any further failure to the gates would result in their removal or replacement with a manual alternative. Later that month the Council arranged for a full repair to the gate, including the bracket. Contractors then tested the gate and found it to be fully functioning.
- January 2020 the Council received a report to say the gate was not opening. An officer from the Council attended to manually open the gates. The officer found evidence of further damage to the gates. The nearby school reviewed their CCTV footage, but the cause of the damage could not be seen.
- In March 2021 the Council wrote to affected residents to advise that, due to ongoing problems with the powered gate, it would not undertake further repairs and would instead look to replace the gate with a manual alternative.
Knotweed
- As part of the highways scheme, in June 2014 Council contractors commissioned specialists to identify the extent of knotweed in the area. The contractors identified the main colony. Although this was not in Ms Y’s garden, some knotweed was found at her property.
- Ms Y’s written agreement with the Council stated minor works would take place including, “the inspection and treatment for Japanese Knot Weed by approved specialists”.
- In July 2014 specialists undertook work to remove the main colony and prevent regrowth. From September the contractors commenced a three-year programme to treat the knotweed in affected gardens. The Council says the following work took place at Ms Y’s property:
- September 2014 undertook a programme of stem injections to larger growth and sprayed smaller growths
- February 2015 inspected the garden and found ‘very little’ evidence of knotweed
- July 2015 carried out further treatment
- November 2015 visited but reported “too overgrown to see”
- February 2016 identified two knotweed stems
- June 2016 identified three small pieces and injected the stems
- July 2016 sprayed any growth as too small to inject
- August 2016 some pieces treated
- The Council says contractors observed a two-year monitoring period after completion of the treatment but did not issue a certificate of completion due to difficulties in gaining access to some of the affected properties. As a result, contractors could not confirm the site was dealt with as a whole.
- Ms Y disputes the information provided by the Council and says she can only recall receiving three visits from the specialists. On at least one occasion Ms Y says the specialists did not attend despite having a confirmed appointment.
Was there fault in the Council’s actions causing injustice?
- The Ombudsman cannot interfere with the merits of the Council’s decisions. Instead, we must focus on how the Council made its decisions and whether there was procedural fault in the Council’s handling of the matters complained about.
- Ms Y’s complaint against the Council is two-fold; firstly, that it has not eradicated knotweed as per its written agreement and secondly that it proposes to replace the motorised gate with a manual alternative. I will deal with each in turn.
- The passage of time has made it difficult to verify whether visits by knotweed specialists took place at the rate suggested by the Council in paragraph 19 of this statement. Although we have exercised discretion to investigate parts of the complaint which are ongoing in nature, I am mindful that Ms Y complained to the LGSCO in 2017. As part of that complaint, Ms Y could have raised any concerns she had about the knotweed treatment which took place at her property between 2014 and 2016. I have not therefore made a finding on the frequency of the visits.
- Instead, I have focused on the alleged failure to issue a certificate confirming the eradication of knotweed because Ms Y has been in ongoing discussions with the Council about this between 2017 and 2021. I have referred to the original written agreement and the wording is clear that the Council will arrange for the treatment of knotweed. It does not say the Council will oversee the certificated eradication of knotweed. I consider there is a distinct difference between the two.
- In my view, and based on the information seen, I do not find fault with the Council on this point. Ms Y has provided email exchanges with a Council officer on this point, but in my view these emails do not demonstrate any agreement by the Council to fund the complete eradication of the knotweed. Having reviewed the written agreement, which is the relevant document, it is my view the Council has complied with the terms of the agreement and arranged for the specialist treatment of the knotweed, albeit not to Ms Y’s satisfaction.
- Turning now to the matter of the gate. I appreciate Ms Y and others seek the retention of an electrically powered gate due to the accessibility this type of gate offers for all residents. However, it is clear from the records I have seen that the gate has presented significant inconvenience for both the residents and the Council since its initial installation. The Council has funded several repairs to the gate, including a complete replacement in 2018. Despite this, the problems continue. This is because the gate is regularly damaged and vandalised rendering it unusable. This is supported by the worksheets completed by independent contractors.
- Ms Y says the Council entered a written agreement with one affected resident to retain the powered gate. I have reviewed the agreement in question and there is no such commitment by the Council. None of the agreements I have reviewed make any specific reference to the long-term retention of the powered gate. I cannot therefore say it is fault for the Council to propose a manual gate as an alternative. Although the Council has a duty to consider the needs of the affected residents, it must also consider the ongoing use of public funds on a gate which is repeatedly damaged and requires extensive and potentially costly repairs.
- Although I do not to find fault with the Council on this point, the LGSCO would ask the Council to maintain communication with the affected residents about the replacement gate. We would also remind the Council of its obligations under the Equality Act to ensure that any replacement gate meets the needs of all residents including those who are elderly, vulnerable or disabled.
Final decision
- We have completed our investigation with a finding of no fault for the reasons explained in this statement.
Investigator's decision on behalf of the Ombudsman