Decision : Upheld
Decision date : 05 Nov 2020
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to ensure that roadworks completed by third party contractors were conducted in a safe manner. The Council was at fault for failing to inspect the correct site. The Council’s fault did not cause a significant personal injustice to Mr X.
- Mr X complained the Council failed to ensure that roadworks completed by third party contractors were conducted in a safe manner.
- Mr X says the roadworks made it unsafe for customers to access his business. Mr X says this has caused damage to the reputation of his business and required him to take time out of his working day to help customers navigate the roadworks.
- Mr X has also complained that a third party damaged their vehicle while passing through the roadworks due to it being unsafe.
What I have investigated
- I have investigated Mr X’s complaints about the Council failing to ensure roadworks carried out by a third-party contractor were safe.
- I have not investigated Mr X’s complaint about the damage done to a third-party’s car. I have explained the reason for this within the section of this decision titled “Parts of the complaint that I did not investigate”.
The Ombudsman’s role and powers
- 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)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
(Local Government Act 1974, section 24A(6), as amended)
- 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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
- Mr X did not respond to my draft decision and the Council accepted the draft decision.
What I found
Essex County Council Permit Scheme for Transport and Infrastructure
- The Permit Scheme controls the carrying out of relevant activities on a public highway. This is to improve the planning and management of works to avoid unnecessary traffic disruption to road users.
- A permit allows a person to carry out a specified activity at a named location for specific dates. When granting a permit for works the local authority must consider all aspects of the proposed activity and the impact on traffic. The local authority must consider the safety of the works and any temporary traffic restrictions or prohibitions. While the local authority must consider whether the proposed works can be completed in a safe manner it is not required to check the safety measures put into place on commencement of the works.
New Roads and Street Works Act 1991 Code of Practice for Inspections
- This guidance outlines that a local highways authority has a responsibility to complete an investigation into a site to verify a defect or inadequacy reported to it by a member of the public or police. This is called an “investigatory inspection” and should be completed when reports of defective or inadequate signage, lighting or guarding is reported.
- If the local authority inspector discovers a defect or inadequacy, it must require action from the party carrying out works at the site. If no defect is found, then no further action is required.
- A utility provider started roadworks on the road outside Mr X’s business property on 24 January 2020. The roadworks involved excavating the road and diverting traffic other than access to the properties blocked by the roadworks.
- On 13 February 2020, a third party had a car accident at the site of the roadworks. Mr X complained to the Council the following day about the safety standards at the site.
- A council street works inspector attended an adjacent roadworks site on 14 February 2020. The inspector confirmed works were in progress, signage was in place and the road was open to allow access.
- The utility provider completed its works on 21 February 2020. On this same date the Council sent a response to Mr X’s complaint. It said:
- The inspector’s assessment showed adequate signage which met all legislative requirements.
- The accident was the result of the vehicle driving at high speed through the road closure.
- The inspector saw no evidence of wrong-doing and only if fault is found can the Council act such as cancelling the works of fining the company.
- When a body makes an application for works on the Council’s road network it must consider the suitability of the works. The Council should consider the suitability of the diversion and the general safety of the roadworks.
- While the Council must consider if the roadworks proposed are safe to complete, there is no requirement for the Council to check the works are being safely carried out on commencement.
- I have seen no evidence to suggest the works proposed by the utility company were inherently unsafe or unsuitable. The Council was entitled to grant a permit for the works the utility company proposed. I would not find fault with the Council not checking the signage on commencement.
- When a member of the public reports a defect or inadequacy at a roadworks site, the Council must verify the defect through an investigatory inspection.
- The Council acted correctly and expediently to arrange an investigatory inspection on the same date that Mr X reported the defect with the signage at the site.
- However, the Council did not complete an investigatory inspection at the correct site. The Council says the inspection was at the correct site, but the works were recorded against the adjacent site. This is fault by the Council whether the investigation was on the incorrect site or it has been recorded against the incorrect site. This fault meant there was potentially unsafe roadworks being completed on the Council’s road network unchecked by the Council. And, as the site works were completed in February 2020, there is now no evidence of the suitability of the signage on site.
- I am not persuaded the alleged failure to provide proper signage at the site has caused Mr X to suffer a significant personal injustice. I have seen no evidence of damage to Mr X’s property or person. I also cannot see how a third-party contractor, unrelated to Mr X, completing roadworks without suitable signage would cause reputational damage to Mr X’s business.
- While the fault in inspecting the wrong site by the Council has not caused an injustice to Mr X, a recurrence of this fault could cause a potential future injustice. The Council should review its process for passing over reports of defects or inadequacies at a roadworks site to its investigatory inspectors to ensure the information received by its inspectors is correct.
- Within three months of the Ombudsman’s final decision the Council should:
- review its process for passing over reports of defects or inadequacies at a roadworks site to its investigatory inspectors to ensure the information received by the inspectors is correct to ensure that inspections take place at the correct site.
- There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.
Parts of the complaint that I did not investigate
- I did not investigate Mr X’s complaint about the damage done to a third-party’s car. This is because Mr X has not suffered a personal injustice relating to this incident. Should the third party wish to pursue their complaint they may do so in any way they see fit. The Ombudsman has not received any consent from this third party for Mr X to raise a complaint on their behalf.
Investigator's decision on behalf of the Ombudsman