Summary: Based on information seen so far, we consider the Council was at fault in stating the incorrect objection period for an Experimental Traffic Regulation Order, failing to properly consider the design of a road junction, providing the complainant with inaccurate and misleading information about its review of the junction, failing to provide a response at Stage 3 of its complaints process within the timescales set out in its policy and failing to ensure it could access officer records after they left the Council, to evidence its decision-making. However, these faults cause the complainant limited injustice for which we have recommended a small financial remedy. We have also recommended the Council should review its relevant policy and practices.

The complaint

1. Ms X complained about the actions of the Council over an alteration to a road junction and the impact this has had on her amenity and safety for her family.
2. Ms X says the Council failed to tell her about its reviews and surveys of the junction since it was altered and delayed in responding to her complaints on these matters.
3. Ms X says the impact of the junction has been to make the pavement outside her property unsafe for her and her children, as lorries regularly have to cross the pavement to turn out of the redesigned junction. She says the impact of this has added unnecessary stress and upset to her and her children over the last year.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have spoken with Ms X and considered written information she has provided.
7. I have considered information and comments provided by the Council.
8. I have considered:
• the Road Traffic Regulation Act 1984
• the Local Authorities Traffic Orders (Procedure)(England and Wales) Regulations 1996;
• information on road safety audits; and
• the Council’s complaints procedures.
9. I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Summary of events

10. In 2017 the Council made an Experimental Traffic Regulation Order (TRO) to alter a junction very close to Ms X’s home. The purpose of the TRO was to prevent traffic turning left out of the junction, from an industrial estate. It was designed to be temporary until a further traffic management scheme for the industrial estate was completed.
11. Ms X says that, as a result of the alterations to the junction, articulated HGVs now regularly drive over the edge of the pavement outside her property as they turn right out of the junction. She is concerned for the safety of her family and other pedestrians using the pavement.
12. Ms X complained to the Council after her wall was damaged by a vehicle. The Council placed a bollard at the end of her wall and met with her on site in early 2018. It said it had carried out a Stage 3 Road Safety Audit and would tell Ms X of its findings and any action to be taken from them. Ms X said she heard nothing further from the Council.
13. Ms X complained about these matters to the Council first in January 2018 and received a final response at Stage 3 of the Council’s complaints process in August 2018. Ms X remained dissatisfied and brought her concerns to the Ombudsman in late 2018.

Traffic Regulation Orders

14. The Road Traffic Regulation Act 1984 and the Local Authorities Traffic Orders (Procedure)(England and Wales) Regulations 1996 as amended set out what the Council should do when making Traffic Regulation Orders (TROs).
15. There are Permanent TROs and Experimental TROs, which have different requirements. Experimental TROs can become Permanent TROs.
16. Experimental TROs do not need the same consultation as Permanent ones and can last for a maximum of 18 months. Because of this the Council must allow six months for public objections. Statutory consultees and the public can raise objections to an Order, which the Council should consider.

Safety Audits

17. The Council used a reputable consultancy firm to carry out safety audits of the junction in this case. The company explains that ‘Road Safety Audit is a systematic process for checking the road safety implications of highway improvements and new road schemes.’ It has four stages:

Stage 1 - Completion of Preliminary Design

Stage 2 - Completion of Detailed Design (or combined Stage 1&2)

Stage 3 - Completion of Construction

Stage 4 - Post Opening Monitoring (12 months)

Complaint procedures

18. The Council has a corporate complaints procedure. This sets out timescales for each stage of the three-stage process. Stage 1 should take no more than 7 working days, Stage 2 15 working days and Stage 3 15 working days.

What the Council did

19. The Council put an Experimental TRO in place in June 2017 in order to improve traffic around the junction close to Ms X’s home. The explanation on the TRO was “to prohibit vehicles making a left hand turn out of [M] Road into [Q] Road to reduce the amount of traffic using both [M and Q] roads as a cut, improving road safety for all users.”
20. The Council explained to Ms X that this was intended to be a temporary scheme while work was completed on a permanent scheme to provide a one-way route in the opposite direction. That scheme needed third party land at another junction which the Council needed to buy.
21. Ms X complained about HGV vehicles crossing over the pavement in front of her home in January 2018. She also reported that her boundary wall had been damaged by one vehicle and sought compensation from the Council.
22. The Council responded to Ms X’s complaint at Stage 1 in late January 2018. It said its Insurance department did not accept the claim for her wall as a third party had caused the damage, not the Council directly. It explained the reasons for the TRO and the safety audit process and said that a Stage 3 audit would ‘be programmed in for the next few weeks’. The Council said the junction would be monitored and it would welcome evidence from Ms X of issues she had concerns about.
23. The outcome of the combined Stage 1and Stage 2 safety audit did not refer to problems of HGV’s overriding the pavement.
24. The Council responded to Ms X’s complaint at Stage 2 in mid-February 2018. It explained a Stage 3 safety audit was scheduled for 22 February and that it would provide her representations to the audit team before it carried out its review of the junction. The Council explained a report would then go to the Council with any recommendations and changes would be then programmed in. The Council also offered Ms X a site meeting.
25. The site meeting took place in March 2018. At the time the officer concerned emailed Ms X saying “I found the meeting with you was to be very helpful, in that I gained a better appreciation of your concerns, having observed a limited number of HGVs turning out from Towers Road during my site visit on the day I met with you.”
26. The Officer also confirmed that the Stage 3 safety audit had taken place along with CCTV surveys of the junction; the outcomes of both were awaited. The Officer said the Council would contact Ms X again once it had considered the findings and decided on a way forward.
27. In May 2018 Ms X asked the Council for a response to her complaint at Stage 2. The Council advised it had responded in February. Ms X then asked to escalate her complaint to Stage 3.
28. The Council responded to Ms X in August 2018 after she chased it for a response a number of times. It apologised for the delay.
29. Ms X says the Council has not provided her with any information form the safety audit or outcomes of any monitoring, nor has it confirmed if it is taking any action on the junction from those reports.

Council comments

30. The Council has responded to my enquiries on these matters with information that does not tie in with what it told Ms X.
31. The Council says it did not in fact carry out a Stage 3 safety audit because it had amended the scheme following representations from residents. Therefore, a Stage 3 audit would not have been on the original scheme. However, it said to Ms X it had carried out the Stage 3 audit in February 2018 and would update her on the outcomes.
32. The Council has provided evidence from the swept path analysis for both large HGVs and maximum size HGVs using the junction. This suggests that HGVs are likely to override onto the pavement in front of Ms X’s property. The Council says the junction is to be reviewed again to ‘improve the geometry’ for HGV movements.
33. However, the Council has also said that HGVs can turn out of the junction without going over the pavement and that it cannot comment on or control the skill of individual drivers. Its responses are therefore inconsistent.
34. The Council has not been able to provide a clear timescale in which it is likely to complete the necessary action to implement the permanent traffic calming scheme through the industrial estate, for which the Experimental TRO was a temporary measure. It says the Experimental TRO was made permanent but has not provided evidence of when that happened. In January 2019, the Experimental TRO had been in place for 18 months, the maximum time allowed under the Regulations.
35. The Council says it cannot confirm what was said to Ms X at the site meeting in March 2018 as the officer concerned has left the Council and it cannot access any of his records.
36. The Council says it will review the junction again but has not provided a clear timescale for this action.

Analysis

37. The Council was entitled to set up an Experimental TRO to improve traffic safety at the junction. However, I have concerns that it stated it would be a temporary measure pending a permanent traffic calming measure which depended on land acquisition but did not have a clear timescale for that scheme to be implemented. Experimental TROs are only allowed for up to 18 months.
38. The Council published the Experimental TRO with the incorrect objection rights. It gave the objection rights for a Permanent Order, which is six weeks to the High Court. The correct right of objection to an Experimental Order is within six months and to the Council (Schedule 5 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996). That was fault.
39. Ms X raised her concerns about the junction just more than 6 months after the Experimental TRO was published, so I do not consider this fault caused her any personal injustice. Nevertheless, the Council did not give the right objection rights on the Experimental Order which could leave the Council open to a successful legal challenge.
40. The Council carried out a combined Stage 1 and Stage 2 safety audit on the junction. It did not complete a Stage 3 audit but told Ms X it had done so. It is fault that it gave Ms X incorrect information as that raised her expectations that the Council was responding to her concerns in a positive way.
41. The Council’s evidence to the Ombudsman on whether HGVs cross onto the pavement is contradictory. The swept path analyses show the pavement edge being crossed, but the Council says HGVs need not do so, so it is down to individual driver skill.
42. On balance, from the video evidence provided by Ms X and the swept path analysis, I consider HGVs do cross onto the pavement. Ms X says it is a regular occurrence and has provided evidence of this happening in the day and at night.
43. I accept the Council cannot control the actions of individual HGV drivers but it has a situation which its Experimental TRO has created, of articulated HGVs overriding the pavement edge which impacts on pedestrians. This includes parents and children walking to and from school. On balance, I consider the Council failed to properly consider the design of the junction.
44. The Council says it cannot access records made by the Officer who met with Ms X and who has now left the Council. That is fault. The Council should be able to retain and access records when staff have left in order to evidence its processes and decision making.
45. The Council failed to keep Ms X updated on its review of the junction from March 2018, when it said it would. That is fault. This meant Ms X was left with no clear outcome from raising her concerns.
46. The Council has been unable to provide me with a clear timetable of forward actions on this matter. The Experimental TRO has become permanent; I am not clear whether this is because the original permanent scheme, requiring land acquisition at another junction is no longer happening. The Council lacks clarity in its process in this matter which is of concern and is likely to impact on other members of the public.
47. The Council took far longer than its stated policy of 15 working days to respond to Ms X’s complaint at Stage 3 of its process. That is fault. It apologised for the delay which I have taken into account in my recommendations.

Injustice and remedy

48. Ms X says the repeated overriding by HGVs onto the pavement in front of her property has caused her unnecessary stress and anxiety, for herself, her family and other pedestrians. The damage to her property has been repaired but she says the Council should repay her the cost due to the revised junction layout.
49. While I recognise Ms X’s concerns I am satisfied that the HGVs do not drive over her property and that it is not all HGVs that use the junction that override the pavement.
50. I therefore consider the injustice to her of this to be limited.
51. However, Ms X was entitled to receive clear, accurate and consistent information in response to her queries to the Council. She was also entitled to a clear outcome form the Council’s investigation into her concerns and a timely response to her formal complaints. The lack of these outcomes from the Council caused Ms X the injustice of unnecessary time and trouble in pursuing these matters.
52. There is inevitably time and trouble involved in bringing a complaint. But this only generally requires a remedy when there has been a fault in the way the Council considered the complaint, which meant the complainant incurred time and trouble above what is considered usual.
53. In cases like these, if the body in jurisdiction had acted without fault it could have resolved the complaint without involving the Ombudsman. So those circumstances justify a payment for time and trouble.
54. The remedy payment for time and trouble is unlikely to be less than £100 or more than £300.

Agreed action

55. I recommend the Council:
• apologises to Ms X for the inaccurate and misleading information it gave her, delays in its actions and completion of its handling of her complaint and for the frustration and unnecessary time and trouble this caused her; and
• pays Ms X £150 for the additional time and trouble in pursuing these matters.
56. The Council should complete these actions within one month of my final decision.
• The Council should review the layout of the junction taking account of daily vehicle movements, Ms X’s video evidence already provided and types of vehicles regularly using the junction to determine whether there are any measures it can take to prevent HGVs from mounting the pavement. As part of the review the Council should conduct traffic surveys at different times of the day to witness the issues complained of first hand.
57. The Council should provide the Ombudsman with a report setting out its findings and any recommendations within three months of my final decision.
• The Council should consider any steps it needs to take to provide the required objection period for the Experimental TRO and to then properly consider any objections made;
• the Council should review its complaint handling processes to ensure it provides responses at all three stages within the timescales set out in its policy; and
• the Council should review how it manages case records within the Transport department to ensure it can access and evidence records after staff leave the Council.
58. The Council should provide evidence of these reviews and any actions resulting from them to the Ombudsman within three months of my final decision.

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Final decision

59. The Council acted with fault in:
• stating the incorrect objection period in the 2017 Experimental TRO;
• failing to properly consider the design of the junction and so allowing HGVs to override the pavement outside Ms X’s property;
• providing Ms X with inaccurate and misleading information about its review of the junction, unduly raising her expectations;
• failing to provide Ms X with a response at Stage 3 of its complaints process within the timescales set out in its complaints policy; and
• failing to ensure it could access officer records after they left the Council, and so was unable to evidence its decision-making.
60. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman