Bolton Metropolitan Borough Council (14 010 207)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 30 Mar 2015

The Ombudsman's final decision:

Summary: The Ombudsman found no evidence of fault in how the Council made its decision not to include Mrs X’s road in its gritting schedule. However she did find evidence of fault in how the Council handled Mrs X’s complaint about this matter. The Council has agreed to apologise to her in recognition of the injustice caused to her.

The complaint

  1. Mrs X says the Council is at fault in how it decided to refuse her request for her road to be included on its road gritting schedule. In particular Mrs X says the Council:
  • failed to minute meetings;
  • did not tell her about the outcome of meetings despite promising to do so;
  • did not tell her the name of the officer dealing with her complaint;
  • did not respond to her complaint within its agreed timescales;
  • insinuated that she was pursuing the inclusion of her road on the gritting schedule for her own personal benefit and
  • broke data protection laws by publishing her personal details on its website and sending letters containing her personal information to the wrong address.
  1. Mrs X also says the Council’s decision not to include her road in the gritting schedule was wrong. She says a report presented to the Executive Cabinet Member was biased because it failed to make a recommendation. Mrs X says the Council’s handling of this matter put her to unnecessary time and trouble and caused her distress.

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What I have investigated

  1. I have investigated Mrs X’s concerns about the Council’s handling of her request to have her road included in the gritting schedule and her subsequent complaint. I have not considered her concerns about the Council breaking data protection laws. The latter part of my statement explains my reasons for not doing so.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. The Ombudsman normally expects someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, the Ombudsman may decide to investigate if she thinks there are good reasons. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. As part of my investigation I have considered information provided by Mrs X including the details of her complaint and copies of correspondence between her and the Council. I made enquires of the Council and considered information it provided. I also considered the report presented by officers to the Executive Cabinet Member. I set out my initial view on the complaint in a draft decision statement and I considered Mrs X’s and the Council’s comments in response.

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What I found

  1. Mrs X lives in Road Y which is not included in the Council’s road gritting schedule. She would like the road to be included because it is used by lots of people including school children.
  2. Mrs X asked the Council to consider including Road Y in its road gritting schedule. In October 2013 the Council told her that it would consider her objections to its decision not to include her road under its complaints procedure. It said it would reply within 14 days.
  3. The Council wrote to Mrs X explaining the Executive Cabinet Member for Environmental Services would consider her request at a meeting in November. For this reason it would not reply to her complaint until after the meeting.
  4. The Council responded to Mrs X’s complaint in mid November. It did not uphold her complaint.
  5. In December Mrs X wrote to the Council appealing against its decision on her complaint. Under its complaints policy, the Council was required to reply within 28 days. It did not tell Mrs X which officer was dealing with her complaint.
  6. On 20 December the Council wrote to Mrs X saying it would need extra time to reply.
  7. In January 2014 the Borough Solicitor, Manager of Democratic Services and Departmental Monitoring Officer decided that Mrs X’s request should be discussed at a formal meeting of the Executive Cabinet Meeting in February 2014. The Council told Mrs X it would reply to her complaint after the meeting had taken place.
  8. The meeting with the Executive Cabinet Member took place in February and a report by officers was presented. The report contained information submitted by Mrs X including the details of a traffic survey she carried out. The report did not make a recommendation.
  9. The Executive Cabinet Member decided not to include Road Y in the gritting schedule.
  10. Mrs X was notified about the outcome of the meeting seven days later and told that her appeal would now be processed.
  11. The Council introduced a new complaints management system later that month. It says that a fault with the system resulted in her appeal being overlooked. Mrs X had to chase a reply and write to the Chief Executive before receiving a final response in mid May.

Analysis

Failure to minute meetings

  1. The Council did not take minutes of the informal meeting held by the Executive Cabinet Member in November 2013. I do not consider this is fault by the Council because the meeting was informal and so there was no requirement for minutes to be taken.

Failure to tell Mrs X about the outcome of meetings

  1. The Council told Mrs X the outcome of all meetings within seven days of them taking place. While I appreciate that Mrs X was keen to know the outcome of the meetings I am satisfied the Council notified her and that it did so within a reasonable time frame.

Failure to tell her the name of the officer dealing with her complaint

  1. The Council told Mrs X in October that it would be dealing with her ongoing concerns under its complaints procedure. This was explained to her in an email. I have read the email and agree that it does not clearly state who was dealing with her complaint. While I note the Council’s complaints procedure does not say a complainant will be provided with the name of the officer dealing with their complaint, I think it would have been useful for the Council to have done so. Nevertheless I do not consider an injustice arose because it did not do so.

Failure to reply to her complaints within the agree timescale

  1. The Council did not reply to Mrs X’s initial complaint within its timescale. It did however notify her that it would not be able to do so because her concerns were due to be considered by the Executive Cabinet Member. I consider it reasonable for the Council to have delayed responding to Mrs X’s complaint while the substantive matter was still being discussed.
  2. Mrs X appealed against the Council’s decision on her initial complaint and the Council should have replied within 28 days but did not do so. As with the earlier complaint the response was delayed because the matter was still being considered by the Executive Cabinet Member. I think it was prudent to await the outcome of this process before determining Mrs X’s complaint.
  3. However, while the Executive Cabinet Member made a decision in early February, Mrs X did not receive a response to her appeal until mid May. This is an unacceptable delay. While I understand the Council implemented a new complaints management system during this period it should have had suitable contingency measures in place to ensure that complaints were not lost when transferring systems. I also note that when Mrs X chased a reply by writing to the Chief Executive’s office her letter was misplaced for two weeks resulting in her having to further chase the Council for a reply. The Council’s failure to reply in a timely manner has put Mrs X to unnecessary time and trouble.

Implication that Mrs X want Road Y included on the schedule for her own personal gain

  1. I have seen nothing in the correspondence provided by Mrs X or the Council which suggests that Mrs X’s motivation for requesting Road Y be included in the schedule was for her own personal gain. I acknowledge that Mrs X has spoken with various Council officers about this matter. However there are no unbiased accounts of these conversations and so I do not see that I can come to a view on what was or was not implied in them.

Decision of the Executive Cabinet Member

  1. Mrs X contends the decision made by the Executive Cabinet Member was wrong because the report presented by officers did not include a recommendation. While I acknowledge that many such reports include a recommendation, the decision not to do so does not amount to bias. Furthermore it was not for officers to make a decision on the proposal as they do not have the delegated authority to do so. By not making a recommendation the report left the Executive Cabinet Member to consider all the information included before making a decision.
  2. I have also considered the report presented by officers and I am satisfied that it included the submissions made by Mrs X, including her traffic survey.
  3. For these reasons I consider the decision by the Council was made properly. As I have found no evidence of fault in how the decision was reached there are no grounds on which I can question the merits of the decision.

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Agreed action

  1. As I found fault by the Council in its handling of Mrs X’s complaint the Council has agreed my recommendation that it should write her a letter of apology.

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Final decision

  1. I have found evidence of fault by the Council in its handling of Mrs X’s complaint. I consider a letter of apology from the Council suitably addresses the injustice caused to her. I have found no evidence of fault in how it considered her request for Road Y to be included on the gritting schedule.

Parts of the complaint that I did not investigate

  1. Mrs X raised concerns about the Council publishing her personal information on its website and sending correspondence addressed to her to the wrong address. The Ombudsman will not consider matters about data protection because the Information Commissioner is the body set up by Parliament to deal with such matters. For this reason I have not investigated this part of her complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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