Decision : Upheld
Decision date : 08 Jan 2019
The Ombudsman's final decision:
Summary: Mr G complains the Council failed to disclose a legal agreement when he requested copies of documents. He says this meant he received incomplete legal advice. There was fault in the Council’s complaint and document handling and this caused Mr G avoidable frustration. But we are satisfied that his legal adviser had knowledge of the agreement when first instructed and so the Council’s fault did not cause the injustice he claims. To remedy Mr G’s injustice, the Council will make a symbolic payment and take action described in this statement to prevent recurrence.
- Mr G complains the Council failed to disclose a legal agreement from 1972 and only sent him an agreement dated 1976 when he requested copies of documents in 2015. He sought legal advice on the 1976 agreement and he believes that advice was incomplete because it did not consider the earlier agreement. Mr G wants the Council to pay for him to get legal advice on the earlier agreement.
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 have investigated Mr G’s complaint which concerns events from 2015 and is a late complaint. This is because it concerns a chain of continuing events ending in a complaint to the Council in January 2018. Mr G was in regular contact with the Council directly and through his lawyer and there is no evidence he left matters for any significant period of time.
- 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))
- 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
- I considered:
- Mr G’s complaint and supporting papers
- The Council’s response to my enquiries
- Comments from the parties on drafts of this statement.
What I found
- The Highway Records Team deals with requests for copies of old highways documents. Archives are held off site. Older records are not electronically stored or catalogued and have to be searched manually. When the Council receives a general request for documents it will usually only seek out the most recent information on the basis that this is the most relevant and up-to-date. If the Council receives a specific request (e.g. for a set period or particular documents) the Records Team will make a further manual search within the parameters requested.
- The Council has a two stage complaints process. Stage one complaints are considered by the service area. If the complainant remains dissatisfied they can ask for a further investigation at Stage Two. If the Council decides not to look at the case further it should write to the complainant and explain its decision.
- The Council built a retaining wall in the 1970s and part of the wall is on or by land owned by Mr G’s father who died in 2017.
- In 2014, a neighbour contacted the Council, concerned about the condition of the wall. The Council sought legal advice on the ownership of the wall and carried out temporary repairs.
- In July 2015, the Council wrote to the owners of the properties bordering the wall (including Mr G’s father) stating they were responsible for its maintenance. In September, Mr G contacted the Council stating he could not find deeds for the property and he believed it was the Council’s responsibility to maintain the wall. In October, Mr G asked the Council to send him copies of all documents it held about the wall. The Council replied the next day stating it was searching its archives for the records.
- In November, the Highways Records Team went through the file. The Council forwarded documents onto Mr G including a letter dated 1 April 1976 and a copy of a 1976 agreement. The letter of 1 April 1976, from the Council to Mr G’s late father’s conveyancing solicitor, refers to an earlier 1972 agreement.
- In January 2016, solicitors representing Mr G and his late father started to correspond with the Council and submitted a letter of claim saying the Council was responsible for the wall.
- In March, Mr G’s lawyer asked the Council for copies of all documents and/or information the Council relied on in concluding that Mr G owned the wall or was responsible for maintenance. In April, the Council replied attaching a copy of the 1976 legal agreement.
- Also in March, Mr G’s lawyer instructed an engineer to report on the construction of the wall and its condition. The engineer reported in May 2016. The report referred to Mr G’s lawyer having sent the engineer the letter of 1 April 1976 (described in paragraph 12)
- In September 2016, Mr G’s lawyer emailed the Council’s lawyer saying ownership of the land was less clear than he previously understood and his client would need to take specialist advice before proceeding.
- In February 2017, Mr G commissioned a second engineer to prepare a report about the wall.
- In June/July, Mr G contacted the Council to ask why it would not accept responsibility for maintenance of the wall. The Council provided a chronology of events from 1971 and documents including a copy of the 1972 agreement and explained it considered this was redundant because it had been superseded by the later one.
- Mr G wrote to the Council in July. He said:
- He had requested all documents in October 2015 and these had not been supplied, in particular the 1972 agreement.
- He had spoken to the Council and been told the omission of the document was an oversight.
- He/his father had been unable to obtain full legal advice which should have included the 1972 agreement and he wanted the Council to cover any additional legal costs.
- The failure to provide a copy of the 1972 agreement was an oversight. A copy had since been provided
- The Council relied on the 1976 agreement which superseded the earlier one
- The Council would not fund his legal advice.
Was there fault by the Council?
- It appears Mr G did not receive the Council’s letter sent to him in October 2017. There is no evidence to suggest fault by the Council, but this partly prompted his complaint in January 2018. The Council was at fault, however, for not accessing the emails between Mr G and the officer who left. This meant the officer who took over had to ask Mr G to provide them and he should not have been put in the position where he had to provide copies of his own emails.
- When responding to Mr G’s original request in 2015 for documents about the wall, and in its complaint response, the Council failed to explain its procedure was to provide only the most recent documents from its archives. This meant Mr G was given the misleading and inaccurate impression that he had received all papers about the wall. The Council should have told him its policy in 2015 when responding to his request so Mr G could have made requests for all documents from 1972.
Did the fault cause an injustice?
- Mr G had to provide copies of emails because the Council had not retained those sent and received by an officer who left. This caused him avoidable inconvenience.
- The Council’s failure to explain to Mr G that it was only providing the most recent documents from its archives meant he was left with the impression that he had all the papers held by the Council in 2015. That was not the case. This caused avoidable frustration.
- I am satisfied on the evidence that the Council’s failure to disclose the 1972 agreement until July 2017 did not cause the injustice Mr G claims. I have taken into account:
- Mr G has confirmed to me that he knew about the earlier agreement when he made the request for documents in October 2015
- Mr G’s lawyer also saw a copy of the April 1976 letter because he sent it to the first engineer who was instructed in March 2016. Mr G’s lawyer presumably received a copy of the April 1976 letter when first instructed. He did not pursue the matter.
- Our Guidance on Remedies explains the principles we use when recommending payments to reflect injustice caused by fault. We take account of a complainant’s and third party’s actions where relevant. Mr G’s father was party to the earlier agreement and he or his solicitor would have retained a copy at the time. The Council referred to the agreement at the outset. Whilst the Council did not provide the agreement, the first action a reasonable person would take, would be to go back to the Council and specifically ask for it. Either Mr G, or his lawyer could have done so at any point and did not. We do not consider it proportionate to recommend a payment towards Mr G’s future legal costs in these circumstances.
- The Council will, within one month of this statement:
- Make a payment of £200 for the errors in handling Mr G’s formal complaint and not retaining his emails when an officer left;
- Make a payment of £150 for the distress caused by the failure to notify him about the limited archive search in 2015.
- Ensure there is a standard paragraph in all responses to requests for archive documents that informs the client about the limited search made on general requests.
- There was fault in the Council’s complaint and document handling and this caused Mr G avoidable frustration. But, Mr G and his lawyer had knowledge of the agreement Mr G wishes to rely on in defending legal action against the Council and could have asked it for a copy. The Council will take the action and make the payments described above. There are no grounds for a payment towards Mr G’s future legal advice. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman