Decision : Upheld
Decision date : 27 Jul 2020
The Ombudsman's final decision:
Summary: Mr B complained the Council failed to provide alternative parking before demolition works as it had promised to do, failed to deal with his complaint properly and failed to ensure contractors followed health and safety practices when removing asbestos. The Council failed to explain the delay in providing extra parking but mitigated that by offering Mr B an alternative garage. That limited Mr B’s injustice to frustration, for which an apology is appropriate. The Council properly responded to the complaint but did not follow its complaints procedure which it should do in future. There is no fault in how the Council handled the issue of removal of asbestos.
- The complainant, whom I shall refer to as Mr B, complained the Council:
- failed to provide alternative parking before it began demolition and construction works, as it promised to do;
- failed to deal with his complaint appropriately; and
- failed to ensure the person removing asbestos from the roof followed health and safety practices.
The Ombudsman’s role and powers
- 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)
- 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
- As part of the investigation, I have:
- considered the complaint and Mr B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided
- Mr B, Northampton Partnership Homes and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- The Council began consulting on redeveloping several garage sites, including the one used by Mr B, in March 2018. The Council invited all affected residents to take part. During the consultation process several residents raised concerns about parking. The Council says in response Northampton Partnership Homes (NPH), which is the organisation which manages the Council’s housing, identified five sites where it would construct 13 new off-road parking spaces for residents use.
- In January 2019 NPH wrote to residents to tell them about the application for planning permission for partial demolition of some garages and construction of new houses. The letter told residents work would begin with refurbishment and demolition of garages beginning in February 2019, followed by construction of new houses. The letter invited garage licensees affected by the development to contact NPH to discuss their options.
- NPH wrote to residents again in May 2019 to tell them construction would begin on site during July.
- NPH offered Mr B an alternative garage for his temporary use. Mr B declined that as cars regularly parked in front of the garage, preventing access.
- At the end of September NPH wrote to an organisation confirming its intention to enter into a contract to construct additional parking. Since then the work has completed on the garages and they are back in use.
- Mr B put in a complaint about how he had been dealt with in June 2019. In its response NPH extended the time for Mr B to empty his garage and confirmed the alternative garage offered to him was still available. NPH explained it also had permission to create extra parking areas which it hoped would be available before or soon after work began. Those spaces were later delayed due to factors outside the Council’s control. This meant Mr B had to park his car on the street as he did not consider the alternative garage suitable due to difficulties accessing it.
- Mr B contacted NPH again on 15 July as he did not consider it had answered his concerns. Mr B asked for his complaint to go to stage two. NPH declined to take the complaint to stage two as it considered the stage one response had addressed his concerns.
- Mr B also contacted NPH about the contractors removing asbestos roofing, raising concerns about them not wearing protective clothing. An officer from NPH visited and was satisfied the contractor was following the method statement. NPH accepts it failed to confirm that view by email to Mr B.
- Mr B says when the Council consulted on works which affected his garage it said it would provide alternative parking spaces close to his property and failed to do so. Having considered the documentary evidence I have found no evidence of a written commitment to provide a separate parking area for residents to use during the development works. In its response to my enquiry though the Council confirmed NPH identified five sites to construct 13 new off-road parking spaces for general residents use. It therefore seems there was a commitment to provide alternative parking areas for residents. I have seen no evidence the Council or NPH made any such provision until after September 2019. While I understand this was due to delays outside the Council’s control I would have expected it to tell residents about the reason for those delays given it had told residents it would provide offstreet parking areas. Failure to do that is fault.
- I now have to go on to consider what injustice Mr B has suffered as a result of the fault. As I said in the previous paragraph, there is no evidence of a formal commitment to provide offstreet parking areas. Given the delays were also outside the Council’s control I do not consider it likely, on the balance of probability, the outcome for Mr B would have been different had the Council kept residents up-to-date with what was happening. Mr B’s injustice is therefore limited to his raised expectations. Taking into account the fact the Council offered Mr B an alternative garage which would have prevented him having to park on the street, I do not consider anything other than an apology appropriate in this case. In reaching that view I have taken into account Mr B’s concern about the garage not being suitable because other cars regularly parked in front of it. I understand that concern. However, given this was a temporary arrangement and amounted to provision of offstreet parking I do not consider Mr B has suffered a significant injustice which would warrant more than an apology.
- Mr B says the Council failed to answer his questions when responding to his complaint. NPH responded to the complaint on the Council’s behalf. I am satisfied the stage one complaint response addresses the concerns Mr B raised. I have therefore not found fault with how NPH, on behalf of the Council, responded to the stage one complaint. In this case NPH declined to take the complaint to stage two. The officer dealing with the request to escalate the complaint made that decision because they were satisfied the stage one response properly addressed Mr B’s concerns. I do not disagree. However, the Council and NPH complaints policies say the head of service will consider the complaint at stage two and whether the stage one complaint response is adequate. That did not happen in this case. Failure to follow the complaints procedure is fault. I do not intend to pursue that point any further in this case though given Mr B has had his complaint considered by the Ombudsman. There is therefore now no point in escalating the complaint to the head of service.
- Mr B says the Council failed to ensure the person removing asbestos from the roof of the garages followed health and safety practices. Mr B says he observed the contractor removing tin roofing without proper protective clothing. I can see from the documentary evidence the complainant raised concerns with NPH in July 2019, which resulted in an officer visiting the site. That officer was satisfied, after viewing practices on site and subsequently viewing the evidence the complainant provided, that the contractor was complying with the method statement. NPH accepts though it should have confirmed that in writing to Mr B. Failure to do that is fault. I appreciate Mr B does not consider the contractor was following the right health and safety practices. However, as NPH, acting on behalf of the Council, was satisfied the contractor was following the method statement after visiting the site and viewing Mr B’s evidence there are no grounds on which I could criticise it. That is because, as I said in paragraph 2, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault.
- In reaching that view I have taken into account the video and photographic evidence Mr B provided. For the video evidence, I can see the contractors carrying out the work do not appear to be wearing protective equipment. However, the method statement only requires protective equipment to be worn when handling asbestos sheeting. As far as I can see in the videos provided the contractors are not handling asbestos sheeting. Mr B’s photographs do, however, show what appear to be broken sheeting on the roof. The method statement requires broken sheets to be wetted immediately, double bagged and sealed. Given I only have photographs of broken sheeting I cannot reach a safe conclusion about whether the broken sheets contained asbestos and whether, if that was the case, prompt action was taken in accordance with the method statement..
- Within one month of my decision the Council should apologise to Mr B for not explaining why additional offstreet parking areas had not been created before the work on site began.
- The Council should ensure in future complaints made to NPH or the Council are dealt with in accordance with the published complaints procedures.
- I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman