Somerset County Council (17 000 843)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 21 Nov 2018

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s failure to tell her about a road closure, which interfered with access to her business. The Council followed the legal rules for closing the road but was at fault in not identifying the impact of the closure on Ms X’s business and contacting her before closing the road. As well as steps already taken by the Council, it agreed to pay Ms X £400 and to review how it describes road works in legal notices.

The complaint

  1. Ms X says the Council’s handling of a road closure near her business caused her avoidable inconvenience and frustration. Ms X wants to the Council to improve its procedures for handling road closures. Ms X also seeks financial redress for the impact the poorly planned road closure had on her business.

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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. 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), 26A(1) and 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)
  3. 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)

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How I considered this complaint

  1. I have considered:
  • Ms X’s written complaint and supporting papers;
  • talked to Ms X about the complaint;
  • asked for and considered the Council’s comments and supporting papers about the road closure;
  • shared, where possible, the Council’s comments and supporting papers with Ms X; and
  • given Ms X and the Council an opportunity to comment on a draft of this statement and considered their responses.

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What I found

  1. The law allows a traffic authority (‘TA’) to temporarily close a road when work takes place on or near that road. The TA must make a ‘temporary traffic regulation order’ (TTRO) to close a road. When considering such a TTRO, the TA should look at what other suitable routes are available for affected traffic.
  2. A TA must give at least seven days’ notice of its proposal to make a TTRO. The TA must publish the notice in a local newspaper. The notice must give the TA’s reasons for making the TTRO; the effect of the TTRO and any alternative routes for traffic; and, start and end dates for the road closure. The TA gives a further, similar, notice after making the TTRO, which it must publish in a local paper. The TA must give the second notice within 14 days of making the TTRO. The TA must also tell the police and fire services, and any neighbouring TA affected by an order, both of its proposal to make, and when it makes, a TTRO.
  3. TAs may publicise TTROs by putting up notices at each end of the affected road and where traffic will need to divert from the affected road. The law says such publicity should take place if the TA find “it would be desirable in the interests of giving adequate publicity to the order”. The TA must take reasonable steps to keep legible notices in place throughout the road closure.
  4. Once a TA makes a TTRO, it must put up, and keep in place, relevant traffic signs. Such signs are to ensure road users have information about the effect of a TTRO, including diversion routes.
  5. The Government’s Traffic Signs Manual (‘the Manual’) includes a code of practice about necessary safety measures when carrying out roadworks. Such measures include provision of a ‘safety zone’ between the site of the road works and traffic using the road. The safety zone protects both those working on the road from traffic and traffic from the road works.
  6. The Manual also covers signing for temporary road closures. The Manual says, “early publicity will allow some road users to plan their journeys to avoid the congestion caused by the works and frontagers to take appropriate action”. And, “effective signing is fundamental to an efficient and safe temporary road management scheme”.
  7. The Government’s ‘Safety at Street Works and Road Works Code of Practice’ (‘the Code’) also concerns the safe signing, lighting and guarding of road works. A failure to comply with the Code is evidence of a failure to meet the legal rules for signing, lighting and guarding road works. The Code refers to site visits to assess risk during any roadworks and to decide on suitable traffic management during those works. The assessment should take account of traffic and the local area. For example, the likelihood of deliveries to shops/businesses; and whether ‘rush hour’, ‘school run’ or pub/club licensing hours may affect the volume of traffic during the day.
  8. The Code says there must be a ‘safety zone’ to protect both road users and those carrying out the road works. The Code says that planning for a road closure should include “providing information to affected residents/businesses…”

The Council and TTROs

  1. The Council has a budget for ‘small improvement road schemes’. The Council says local people usually propose such schemes. For example, a village identifies a need for a pedestrian crossing. The Council says it updates local councillors and the Town/Parish Council (‘the local Council’) when planning works for community led schemes. The Council relies on councillors and local Councils to share scheme updates with residents.
  2. The Council says about 50% of small improvement schemes involve a temporary road closure. Temporary closures take place where the is not enough room to protect people carrying out the improvement work from passing traffic, and or where excavations take place. The Council says small improvement schemes for works like those near Ms X’s home have taken four to six weeks to complete.
  3. The Council publicises on its website ‘Guidance Notes for TTROs’. This guidance includes:
  • using TTROs only “if there is no other method of working safely and minimum road widths as described in [the Manual] cannot be maintained”;
  • applicants must put up, and keep in place, signs for the TTRO in line with the relevant legal rules and the Manual;
  • “advance warning signs must be erected on site a minimum of two weeks prior to the [TTRO] restriction coming into force”;
  • the applicant for a TTRO must carry out all public relations, including “the notification by way of a letter to residents and all affected properties along the length of road (including businesses). This must be sent (including a copy to [the Council]) a minimum of two weeks in advance of the restriction coming into force”; and
  • the applicant for a TTRO “must…inform all interested parties known to be directly affected by the proposed prohibition, including all frontages on the length of road concerned and those identified by the [Council]”.
  1. The Council’s website information about TTROs also says:

“if you own a business affected by a road closure there is no legal obligation or express statutory authority that enables us to compensate for increased costs or any financial loss suffered as a result of the road closure. If your property or business is affected by the closure, the applicant for the road closure should have made you aware that an application was being made.”

  1. The Council says it publicises its TTROs in line with the legal rules (see paragraph 7). And, for best practice, it also publicises TTROs by giving councillors, the local Council, and others (for example, bin collection teams and the road haulage association) copy TTRO notices.

What happened

  1. After four years, including a two-year design to construction programme, the Council carried out a small road improvement scheme where Ms X lives (‘the Scheme’). Ancillary work was necessary to put the Scheme in place. (In this statement, the Scheme and the ancillary work are together ‘the Works’.) The Council says the Scheme was a community led scheme: Ms X disputes this.
  2. About 17 months before the Works started on site, the Council:
  • knew the extent of the Works;
  • knew construction of the Works would involve a five-week road closure; and
  • planned to carry out the Works during the school summer holiday.

The Council was both the local highway authority and TA for the Works and the client/customer for the Works and applicant for the linked TTRO.

  1. In the six months before the Works started, the Council was in touch with the local Council about building the Scheme during that year’s school summer holiday. Some of the local Council’s published meeting notes during those six months, refer to the Scheme. Those notes do not expressly refer to the ancillary work or any need for a TTRO.
  2. About three weeks before the proposed start date for the Works, the Council gave notice of its proposal to make a TTRO (‘Notice One’). The Council says it publicised Notice One by:
  • placing it in a local paper;
  • erecting copies at each end of the affected road, which road had no pavement;
  • copying it to emergency and other public services; and
  • copying it to the local Council and local county councillor.

The contents of Notice One are in line with the legal rules (see paragraph 7). (Ms X disputes that Notice One was put up at each end of the affected road.)

  1. Neither the local Council nor the county councillor received Notice One in time to publish it in the July local magazine or published meeting notes. (The local Council publishes ‘approved’ notes of its meetings a month after a meeting. So, for example, notes published in July cover the preceding June meeting.)
  2. The Council, as TA, sent itself a letter as applicant for the TTRO (‘the Letter’). The Letter said the Council, as applicant for the TTRO:
  • must put up signs, including for the diversion route and at relevant road junctions, about the Works and the road closure as shown in a plan and specification;
  • must put up advance information signs, as set out in the Letter, two weeks before the road closure; and
  • must “inform interests known to be directly affected by the proposed prohibition, including all frontages on the length of the road concerned, in advance of the works.”

The Letter also asked the Council, as applicant, to send it, as TA, “a copy of the letters sent to residents.”

  1. The Council then made a TTRO to close the road affected by the Works (‘the Order’). (In this statement, ‘the road closure’ means the length of road closed by the Order and ‘the Road’ means the road through the local settlement, including the length closed.) Access to Ms X’s property is from the Road and near to the road closure.
  2. The Council publicised the Order in the same way as for Notice One. The Council says it advertised the second notice (‘Notice Two’) on the Sunday eight days before the planned start date for the Works and the road closure.
  3. Four days later (Thursday), the Council emailed the local Council and said the road closure would be delayed by a week, although the Works would start as planned. The road closure would therefore take place fifteen, rather than eleven, days after the Council says it published Notice Two. The Council asked the local Council to share this information.
  4. The evidence shows local people were confused about what was happening. For example, road signs put up that Thursday gave both the original and a delayed start date for the Works. Some people, including the local Council, were interpreting Notices One and Notice Two as meaning the road closure was in place Monday to Friday but not at weekends (or bank holidays). And, because of local Council meeting and magazine publication dates, local people did not yet know that building the Scheme, with the ancillary works, needed a five-week road closure. (When information about the Order and the road closure appeared in the local magazine and notes from a local Council meeting, the delayed road closure was in place.)
  5. Ms X found out about the road closure on the Thursday and four days before the Works started. Ms X immediately asked the Council and the local Council for more information. Ms X said the Council gave her no opportunity to prepare for a road closure and trade during the school summer holidays was important to her business. In response, the Council said it had followed TTRO procedures in making the Order. The Council also said access for residents and businesses would be available during the Works and ‘business as usual’ signs would be in place.
  6. The road closure took place. Ms X then found a physical barrier across the Road at a nearby junction where a diversion route started (‘the Junction’). Access from the Road to Ms X’s property is between the Junction and the road closure. Ms contacted the Council:
  • asking how long the road closure would last as inconsistent information was circulating;
  • saying, if, as some people reported, the road closure would last five weeks, “no one has had the decency to tell her” and this was “completely unacceptable”;
  • saying no ‘business as usual’ signs were on site;
  • saying a physical barrier at the Junction closed more of the Road than allowed by the Order; and
  • road workers were standing at the Junction and preventing access to her business.
  1. In response, the Council:
  • said it would check signs at the site and arrange extra signing for businesses. (These extra signs were in place four days after the road closure took place);
  • accepted there were road workers at key junctions blocking the Road (using vehicles and bollards), which was to ensure drivers followed diversion routes;
  • said people positioned at the Road junctions knew they had to move the bollards/vehicles to allow access to homes and businesses;
  • although only Ms X complained about the Junction barrier and trouble gaining access, it would reduce the van/bollard barriers to cover a half width of the Road at the Junction.
  1. Ms X says the full width barrier continued in place and, people making deliveries to her business and the few customers that arrived, reported problems gaining access. Ms X again contacted the Council, sending photographs and saying:
  • the barrier at the Junction was “having a devastating impact” on her business;
  • it had treated her unfairly in not giving her information about the Order at least two weeks before the road closure;
  • the information it gave shortly before the road closure was unclear and caused confusion; and
  • during the Works, information on the Council’s and other websites was inconsistent with what was happening on site, for example, whether there was a road closure or temporary traffic lights allowing through traffic.
  1. The Council’s position, in summary, is:
  • It gave correct notice of the Works and the Order but accepts the information ‘may not have reached all affected residents’;
  • the Letter, and Ms X’s emails, are evidence of two weeks’ advance signing for the Works and the Order;
  • its local councillors and local Councils are “fully aware of their responsibility” to share information about road schemes with residents;
  • it has to trust the professionalism of councillors and local Councils “to undertake their duties”;
  • there is evidence the local Council shared information about the Scheme on its website and in meeting notes;
  • while not compulsory, a letter drop is a good way to get information to local people but it has no evidence if this happened for the Works/the Order. (In response to Ms X’s complaint, the Council now keeps records of ‘letter drops’);
  • it was not “feasible”, without ‘greatly extending’ the Works and the number of Monday to Friday road closures, to use temporary traffic signals when its contractor was not on site;
  • some traffic sign confusion arose because of unrelated events outside its control affecting traffic over a wide area during the Works;
  • in responding to conditions on site, contractors may need to make ‘minor daily changes’ that could lead to inconsistencies in published and website information;
  • it went beyond legal rules, the Manual and its normal practice to provide extra business signing during the road closure;
  • to accept the timing of the extra signs and contact with its contractor about traffic management “could have been better”;
  • it could not do more to help Ms X without putting road users and its contractors’ safety at risk; and
  • while not upholding Ms X’s complaint, to apologise for disruption during the Works.
  1. Ms X came to the Ombudsman saying what happened to her business during the Works was ‘predictable and preventable’.

Consideration

Introduction

  1. Somerset is a holiday destination and I recognise the importance of summer trade for Ms X’s business. The road closure lasted five weeks and coincided with the school summer holidays. Ms X did not know about the road closure until four days before the Order was due to take effect. This four days’ notice only arose because the Council delayed the road closure for a week and asked the local Council to share that information with residents. Ms X found herself in a position of reacting to events rather than actively preparing for them at a key time for her business. I therefore recognise the strength of Ms X’s dissatisfaction with the Council’s handling of the Works and road closure. My role is to consider whether fault by the Council has caused the injustice experienced by Ms X.

The need for and duration of the Works

  1. Ms X says the Council did not make clear the Scheme included the ancillary work. This led Ms X to question why the ancillary work took place, adding to the duration of the road closure.
  2. I recognise that local conditions will affect road improvements. Here, the evidence shows site conditions made ancillary work necessary to put the Scheme in place. I have seen no evidence the Council arranged for work that was not reasonably necessary to secure third party cooperation and to build the Scheme.
  3. The Council’s programme allowed six weeks for completion of the Works, which is in line with similar schemes (see paragraph 15). The contractor’s programme shows eight weeks from ‘site set up’ to ‘site clearance’ and includes time when the road closure was not in place. I find no evidence the ancillary work significantly affected the overall time needed for the road closure to build the Scheme.
  4. Overall, I find no fault by the Council in reaching its decisions about the extent and duration of the Works.

The timing of the Works

  1. I recognise why Ms X strongly disagrees with the Council’s decision to build the Works during her key trading period, that is, the school summer holidays. I have taken account of local conditions and the estimated duration of the Works and road closure. I find no evidence of fault in how the Council decided the school summer holidays was the most suitable time to carry out the Works (see paragraph 2).

The need for a TTRO

  1. The Council has not confirmed the width of the Road. I understood it to be about 5.5 to 6 metres. Ms X says, through the road closure it was between 6.76 and 7.9 metres wide. Despite this lack of clarity, the evidence also shows the Works included excavations. I also find the Council had a reasonable and sustainable case in trying to complete most of the substantive work within the school holidays and knew this was a ‘tight timescale. I have considered the Code, which says a ‘safety zone’ must be in place to protect both contractors and road users. And, I recognise Ms X remains unconvinced the road closure was needed. And yet, I find the balance of the evidence does not show the Council acted with fault in this case in deciding a TTRO was necessary for the Works.

Making the Order

  1. There is no legal rule saying a TA ‘must’ tell someone in Ms X’s position about a TTRO. The evidence shows the Council complied with the minimum legal rules for making the Order (see paragraph 7). It is regrettable that Ms X did not see Notices One and Two in the local paper but, this is not ‘fault’ by the Council.
  2. I also recognise Ms X’s concerns about Notices One and Two giving no details of the ancillary works. And yet, the information in Notice One and Notice Two met the legal rules (see paragraph 7). On balance, I do not find the Council at fault in not publishing full details of all the Works, including the ancillary work.
  3. However, Notices One and Two are unclear. It is possible to read the Notices to give the information the Council intended them to provide. But, another interpretation is possible and some local people read the Notices ‘wrongly’. I therefore found the Council fell below acceptable administrative standards in publishing Notices capable or more than one interpretation. In response, the Council said the Notices followed a standard format. The Council said it had used this format for many schemes and no one had previously raised concerns or misunderstood its notices. However, the Council said it would take ‘Plain English’ advice on the wording. I thank the Council for agreeing to take action. However, that no one has previously complained about a ‘standard’ document does not necessarily mean it has not caused confusion. And, the evidence here does show the Notices misled and caused confusion for local people, including Ms X. I find fault here.
  4. The Council also says it goes beyond the minimum legal rules and sends TTRO notices to councillors, local Councils and others (see paragraphs 8 and 18). However, I am concerned about the Council’s comments on the ‘responsibilities’ and ‘duties’ of councillors and local Councils (see bullet points 3 and 4 to paragraph 33). There is no general legal duty on local councillors or local Councils to publicise the Council’s small road improvement schemes and TTROs. The Council has the duties and powers of a local highway authority and TA. Here, the Council was both the TTRO applicant and the highway authority and TA for the Road and the Order. So, compliance with the law, the Manual and the Code were the Council’s duty and responsibility. In responding to the draft of this statement, the Council accepted this. The Council also explained that, on community led schemes, it tried to work with the local Council and councillors to share information.
  5. If the Council wishes to arrange for councillors and local Councils to act on its behalf, it must give them full, clear, accurate and timely information. Here, I said the evidence showed the Council gave the local Council unclear and inadequate information about the Order and road closure. And, the Council gave that information too late for the local Council to publicise before the road closure took place. The information published by the local Council, before it received Notice One, does not refer to a TTRO and or a five weeks road closure. In response to the draft of this statement, the Council said the local Council was active in passing information to local people before the Works started. The Council also said it clarified with the local Council that the road closure would be in place seven days a week for five weeks. I have reviewed the evidence, including the timing of local Council meetings and that approved notes follow a month later (see paragraph 23). The evidence does not show clear and adequate information was available to local people at least two weeks before the Works started. I find fault here by the Council.

Notice

  1. The law, the Manual, the Code and the Council’s TTRO guidance make clear the importance of giving advance notice of road works. Advance notice includes putting up traffic signs along local roads to alert drivers to planned road works. It also includes giving information to residents, businesses and others a TTRO is likely to affect, before it takes effect.
  2. The Council, as a local highway authority and TA, will be familiar with the Manual, the Code and its own TTRO guidance. Its officers (as both applicant and TA for the Order), will have visited the site of the proposed road works and the surrounding area in planning the Works and the Order. I have considered information about the population where Ms X lives and viewed the area using internet maps. The likely negative impact of the road closure on visitors to Ms X’s business, was reasonably foreseeable. On balance, I find the Council fell below acceptable administrative standards in not identifying and addressing this impact with Ms X in planning the Works and road closure.
  3. I further find the Council would have known before making the Order that, to comply with the Code, there would be traffic signs at the Junction. I am not surprised that Ms X may have been the only person complaining about access. Ms X’s visitors and customers are more likely to be unfamiliar with the area and more easily deterred by traffic signs/people patrolling the Junction from seeking access than, say, a local resident. I also have no reason to doubt that Ms X’s suppliers faced difficulties getting through the Junction, as those enforcing the diversion routes are more likely to view vans and lorries as ‘through traffic’. I therefore find it was reasonably foreseeable that advance traffic signing of the Works would have an impact on Ms X’s business although her property did not adjoin the road closure.
  4. The Council’s own guidance does not limit contact about TTROs to property adjoining a closed length of road (see bullet point 5 to paragraph 16). Here, the Council was both the applicant for the Order and the TA. So, the Council/its contractor was responsible for giving (and receiving) the notice to residents and businesses needed by the Letter (see paragraph 24).
  5. I find the balance of the evidence suggests the Council/its contractor did not provide two weeks’ advance traffic signing for the Works (see bullet point 3 to paragraph 16). In responding to a draft of this statement, the Council confirmed key dates in making the Order. These dates show the Council made the Order seven days after Notice One and more than 14 days before it was to take effect. The Council cannot provide evidence it, as applicant, and or its contractor, complied with the Letter in giving 14 days notice before the Order took effect and the Works started on site. This is fault.
  6. The evidence shows the Council knew the Works needed a five weeks road closure, 17 months before its contractor started on site. The Council had ample time and opportunity to ensure local people had clear and accurate information about the Works and the five weeks’ road closure before they took place. However, the Council failed to do this.
  7. In the circumstances of this case, I found the Council at fault in not directly contacting Ms X as a person the Works and Order were likely to affect. I also found the Council at fault in failing to comply with its own guidance about giving two weeks advance notice of TTROs. In response, the Council says, legally, it does not need to contact individual businesses or put up signs before starting road works. The Council accepts it is good practice and that it includes this good practice in its TTRO guidance. I have reviewed the point. I find no reason to change my view: in the circumstances of this case, while the Council complied with the law, it fell below acceptable administrative standards.

Conclusion on the Works and the Order

  1. The evidence does not persuade me that, if Council had given Ms X advance notice of the Works and the Order, their timing and duration on site would have changed. So, the injustice to Ms X caused by the Council’s fault, is her lost opportunity to:
  • prepare for a five-week summer road closure; and
  • engage with the Council about the Works and the Order, including traffic signing.

I cannot turn back the clock and so financial redress is a suitable way to recognise injustice to Ms X arising from the Council faults I have identified.

Complaints handling

  1. The Council and Ms X disagree about when Ms X made her complaint. Having considered the written evidence, I do not find the Council at fault in first responding to Ms X by giving her information, meeting with her and arranging extra business signs. However, when the Council told Ms X it could take no further steps to resolve her concerns but she remained dissatisfied, it should have signposted her to its complaints procedure. It did not do this: this is fault.
  2. When the Council did respond to Ms X’s correspondence as a complaint, it failed to signpost her to stage 2 of its complaints procedure. This is also fault. When Ms X, having found the complaints procedure on the Council’s website, made a stage 2 complaint, the Council accepted its error and then delayed its response.
  3. I have considered if the Council’s failure to properly signpost Ms X to and through its complaint procedure and its avoidable delay at stage 2, caused Ms X injustice. I find no evidence the Council’s responses to Ms X would have been different if it had dealt with her correspondence as a complaint from the start or without avoidable delay at stage 2. Ms X would have come to the Ombudsman with her complaint but, sooner than she did. However, Ms X did receive a poor complaints service from the Council and this will have unnecessarily added to her frustration and dissatisfaction. I therefore find the fault in the Council’s complaint handling caused Ms X injustice.

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Agreed action

  1. The Council apologised to Ms for disruption and frustration caused by the Works. The Council also apologised for its delays in handling her complaint. And, once Ms X raised her concerns about the road closure, it did act quickly to meet with her and arrange extra business signing. I therefore recognise the Council took steps to address Ms X’s complaint. And yet, I do not find the Council’s apologies provide a proportionate and adequate response to the injustice to Ms X arising from its faults. The Council has agreed to take further steps and, within 28 days of the date of this decision statement, it will pay Ms X:
  • £300 in recognition of her lost opportunities and avoidable distress caused by its failure to contact her in advance about the Works and the Order; and
  • £100 in recognition of her avoidable time, trouble and frustration in taking her complaint through its complaints procedure.
  1. The Council is now keeping records of ‘letter drops’ (see bullet point 6 to paragraph 33) and is making changes to improve its communication with residents about road works. (Ms X says the Council has not yet improved and provided information about recent road works in support of her view.) The Council has also joined its design and programme teams and is preparing a ‘service improvement plan’ that will include more effective management of residents’ expectations. The Council therefore agreed, within 42 days of the date of this decision statement, to:
  • take ‘Plain English’ advice and review how it words notices about road works to ensure they provide unambiguous and accurate information to local people; and
  • contact officers responsible for drafting and processing notices about road works to remind them that local people, and not only highway/road traffic professionals and contractors, read such notices.
  1. The Council also agreed, within 56 days of the date of this decision statement, to send the Ombudsman written evidence of:
  • its compliance with the recommendations at paragraphs 58 and 59; and
  • the changes it has made to improve communication with local people about road schemes and possible road closures.

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Final decision

  1. I completed my investigation, finding fault causing injustice, as the Council agreed to take the steps set out at paragraphs 58 to 60.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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