South Tyneside Metropolitan Borough Council (18 002 009)

Category : Other Categories > Land

Decision : Upheld

Decision date : 17 Sep 2018

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to complete agreed maintenance work on an embankment and investigate his complaint properly. The Council is not at fault for failing to complete work on the embankment. The Council is at fault for wrongly closing Mr X’s complaint and is making service improvements to remedy the injustice caused.

The complaint

  1. The complainant, who I will refer to as Mr X, complained the Council failed to complete maintenance work on an embankment which it agreed to do following his complaint in 2017.
  2. Mr X says the embankment remains overgrown with overhanging trees impacting on road users’ safety. He complains the Council has not investigated and responded to his complaint properly.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 read Mr X’s complaint and discussed it with him.
  2. I considered the Council’s comments about the complaint and the supporting documents it provided. This included its complaint response to Mr X and its email correspondence with him.
  3. Mr X and the Council both provided comments on my draft decision.

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What I found

  1. The Environmental Protection Act 1990 states councils have a responsibility to ensure land and highways are kept clear of litter and refuse, as far as possible. The Highways Act 1980 states if a tree or hedge is overhanging a public highway and is obstructing the passage of pedestrians or vehicles, the landowner has a responsibility to cut it back.
  2. The Council says it varies the frequency and attention of its work to manage the environment according to:
  • The type of greenspace presented, for example grass or trees;
  • Local site needs for example, closeness to buildings;
  • Amenity value, for example bedding areas;
  • The use of the land, for example public parks; and
  • Health and safety implications in relation to maintenance.

Complaints complaint process

  1. The Council has a three stage complaints process.
  2. At stage one, a service manager or senior colleague will look at the problem and let the complainant know within ten days how they may be able to help. The Council is unlikely to send a written response at this stage.
  3. At stage two, the Council passes the complaint to a senior manager to investigate. The target response time is fifteen working days.
  4. At stage three, the Chief Executive appoints a colleague to investigate the complaint on their behalf. A full response will be sent in twenty days.

What happened

  1. On 10 December 2016 Mr X complained online to the Council about the state of a local embankment. He complained it was littered with discarded shopping trolleys and branches and that there was a general lack of maintenance.
  2. On 12 December 2016, the Council acknowledged the complaint. It stated it would investigate and aim to give Mr X the outcome by 23 December 2016.
  3. On 15 December 2016, the Council incorrectly closed Mr X’s stage one complaint.
  4. On 12 January 2017, Mr X contacted the Council as he had not had a response to his complaint. The complaint was escalated to stage two. The Council said it would complete an investigation and contact Mr X within 15 working days. After this contact the Council sent a team to the embankment to remove the litter.
  5. On 23 January 2017, the Council contacted Mr X by telephone to discuss his complaint. Mr X said he did not want rubbish removing, but trees and shrubs cutting.
  6. In March 2017, the Council telephoned Mr X and following a conversation about the embankment and the removal of fly-tipping, closed his complaint.
  7. On 15 May 2017, Mr X contacted the Council saying he had not received a satisfactory response to his complaint and the embankment was still being neglected. The Council accepted it had shut down his stage two complaint without a written formal response and reopened the complaint. It assigned the complaint to a senior manager.
  8. On 19 May 2017, the Council sent Mr X a stage two formal response. The stage two letter explained contractors had cut back trees and foliage on the embankment. The contractors were not told to enter the site to clear waste.
  9. The investigating officer (Officer Y) apologised for Mr X’s stage two complaint being closed prematurely. He explained that as Mr X had asked for telephone contact, a voice-mail message was left for him. There was a delay in the Council leaving the message and Mr X listening to it. By the time Mr X returned the call, the Council had shut the complaint.
  10. Officer Y confirmed the Council would remove the fly-tipping which had previously been discussed with Mr X. On 30 May 2017, a contractor attended site to remove the fly-tipping.
  11. Officer Y also visited Mr X to discuss his complaint. Mr X says in this conversation he was told the Council would ‘bottom out’ the embankment. The Council does not have a record of when the visit took place or notes from this. It says the areas discussed with Mr X included overgrowth at the edges of the site, the long-term options for maintaining the site, funding to complete this work and resources needed.
  12. Mr X contacted Officer Y in July, August and September to tell him there had been no cutting down of bushes and trees on the embankment. He complained it remained overgrown. Officer Y responded to his emails. He assured Mr X he would follow up a start date for work and keep Mr X informed. There is no evidence this happened.
  13. On 3 January 2018, Mr X contacted Officer Y asking when engineers were due to start work to ‘bottom out’ the site. Officer Y said the Council was looking at funding for a package of works to take place on the embankment and this work would need to be completed in stages. Officer Y explained the Council was waiting for a survey and engineer’s report.
  14. In February 2018, Mr X contacted Officer Y. Officer Y told Mr X the Council would not complete the work on the embankment this financial year. Officer Y advised Mr X if he was unhappy to access the complaints process.
  15. On 27 February 2018, the Council reopened Mr X’s complaint. It provided an additional stage two response addressing Mr X’s new complaint about the long-term scheme of maintenance work on the embankment. It also responded to Mr X’s complaint the Council was not keeping him up-to-date about developments about the scheme of works.
  16. The Council explained “The current position is that we are waiting for a response from various engineers regarding checking whether there is a potential serious risk to the retaining wall. This is ongoing and once we have a clearer steer, we can then decide the best course of action. Needless to say, an inspection of this type and over such a large area needs careful management”.
  17. On 9 March 2018, Mr X escalated his complaint to stage three. Mr X was unhappy the Council had not started the phased work and that he had not been given timescales for when the work would start.
  18. On 20 April 2018, the Council sent Mr X a stage three response. The Council:
    • Apologised for closing Mr X’s first complaint in 2016 wrongly. It accepted he should have received a stage one response and noted this as a service improvement;
    • Advised his stage two complaint was about litter and grounds maintenance. The Council dealt with this in its response in May 2017;
    • Acknowledged he was informed that an engineering survey and phased work was to be carried out. However, the response explained the Council needed an external contractor to inspect the embankment and provide a report. The Council stated the budget for this work had not been available until now and a survey was imminent;
    • Explained it was unable to allocate a budget for further works on the embankment, until it had the findings from the survey;
    • Advised the work on the embankment may need to be completed in phases and take up to five years due to the costs involved; and
    • Stated from 1 May 2018 contractors would visit the embankment monthly to cut back the shrub edges of the site and litter pick the embankment edges.
  19. Mr X was unhappy with the stage three response. He complained the Chief Executive had not investigated his complaint and that the Council was backtracking on agreed works.
  20. The Council responded to Mr X. It stated his complaint had been investigated in line with its policy and it would not consider his complaint further. The Council directed Mr X to the Ombudsman if still unhappy.
  21. In response to my enquiries the Council said an initial review of the site has taken place but a further “detailed and potentially intrusive survey” was needed. It is unable to comment on the ‘bottoming out’ of the area until the results of the survey are known.
  22. The Council confirmed the Highways Section inspected the embankment and advised no work should be carried out to the site until the Council receives results of the survey as “substantial works may cause further erosion, potentially leading to landslide conditions and may impact on the integrity of the retaining wall”.
  23. The Council has confirmed a site survey will be completed Autumn/Winter 2018.
  24. In relation to the stage three complaint investigation, the Council stated the procedure had been updated. Previously, the website said a ‘senior colleague’ would complete an investigation. It had been changed to ‘colleague’ with a ‘senior colleague’ providing oversight. It explained the Chief Executive would not investigate complaints.
  25. In response to the draft decision, Mr X states the Councils has not been pruning the embankment monthly. The Council confirmed contractors did not visit site in June, however did complete pruning in May, July and August 2018. The Council has completed site visits and has confirmed work is being completed to an acceptable standard.

My findings

  1. In December 2016, Mr X complained to the Council. The Council closed the complaint without Mr X being contacted or any action on the complaint being taken. This is fault. The Council’s stage three response identified this fault and the need to raise it as an area for service improvement. This is a satisfactory remedy to the injustice caused.
  2. On 12 January 2017, Mr X asked the Council to escalate his complaint to stage two. The Council said it would send a written response to Mr X by 2 February 2018. It did not do this.
  3. In May 2017, the Council reopened Mr X’s complaint after he said he had not received a satisfactory response. The Council accepted it should have sent Mr X a formal written response in line with its complaints policy. However, Mr X had told the Council he preferred telephone communication. Therefore, the Council is not at fault for telephoning Mr X and closing his complaint.
  4. Mr X’s initial complaint to the Council was about littering and overgrowth on the embankment. In May 2017, the stage two formal response dealt with this complaint. It advised that foliage had been cut back and the Council would remove fly-tipped waste. In May 2017, this was completed.
  5. Officer Y met Mr X to discuss his complaint. Mr X states the Council agreed to ‘bottom out’ the embankment. As I was not present, I cannot comment on what was said. However, there appears to be miscommunication in what work the Council agreed to complete.
  6. The Council has completed an initial survey of the embankment and reported a further survey is required. The Council is not at fault for not ‘bottoming out’ the embankment.
  7. Mr X contacted the Council between July 2017 and September 2017 to report there had been no cutting down of bushes and trees on the embankment. The Council responded, telling Mr X it would follow up this work and keep him informed. There is no evidence this was done. However, this is minor fault and has not caused Mr X a significant injustice.
  8. Mr X complained his stage three complaint was not dealt with by the Chief Executive. An officer not involved in the complaint completed the investigation. A member of the senior team oversaw the complaint investigation. This is in line with the Council’s policy and is not fault.

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Agreed Action

  1. I recommended the Council should provide the Ombudsman with evidence of its stage one service improvements made in complaints. The Council has provided this information in response to the draft decision.

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Final decision

  1. The Council is not at fault for not carrying out maintenance work on the embankment. The Council is completing a survey of the embankment to plan for the work required.
  2. The Council is at fault for incorrectly closing Mr X’s complaint. The Council has apologised and is reviewing how it handles complaints about greenspace. This is satisfactory remedy for the injustice caused. Therefore, I intend to complete my investigation.

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Investigator's decision on behalf of the Ombudsman

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