Wakefield City Council (21 009 701)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 08 Dec 2021

The Ombudsman's final decision:

Summary: We shall not investigate this complaint about delay repairing the road. This is because during our consideration of the complaint the Council offered an acceptable remedy.

The complaint

  1. Mr X complains the Council delayed dealing with loose inspection hatch covers on the road outside his home. He says this meant heavy vehicles passing over the covers caused noise and vibration, disturbing him and his mother. He also says he went to time and trouble pursuing the matter.

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The Ombudsman’s role and powers

  1. We consider 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)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I considered information provided by Mr X. I invited the Council to remedy the complaint. I considered the Ombudsman’s Assessment Code.
  2. I shared my draft decision with Mr X and considered his comments on it.

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My assessment

  1. The Council’s response to Mr X’s complaint accepted the Council took ‘no meaningful action’ to resolve the matter from April 2020 until summer 2021, despite being chased. In early November 2021 Mr X told me the covers had all been replaced (I understand some by the Council, some by utility companies) in the last couple of months. That resolved the practical problem. Mr X was unhappy with the time taken since the matter was reported in April 2020.
  2. Once the Council acted substantively in summer 2021, remedial works happened within a few months. I accept the COVID-19 situation meant that, even had the Council dealt properly with the request in 2020, the works would not necessarily have happened as speedily after April 2020 as they did after summer 2021. However, it is still likely, on balance, the works would have happened sooner but for the Council’s fault, as there were times within that period with fewer COVID-19-related restrictions.
  3. Therefore, the Council’s fault meant Mrs X and Mr X experienced the noise and vibration from heavy vehicles passing over the covers for longer than necessary. Mrs X is elderly and has health conditions that made this disruptive and distressing for her, especially when the noise wakened her early in the morning. Mr X states the disruption did not affect him in the same way as his mother. Nevertheless, he had some avoidable disruption. He also went to time and trouble dealing with the matter.
  4. Where a council’s fault has caused some avoidable distress, annoyance or time and trouble pursuing a justified complaint, the Ombudsman might suggest the Council make a payment to recognise that. Such a payment will usually be a symbolic amount. The Ombudsman does not award compensation or damages in the way the courts might.
  5. The Council has now offered to pay Mr X and Mrs X £100 each. This is to recognise some distress and annoyance from the disturbance caused by the covers being unrepaired for longer than necessary, and some time and trouble.
  6. Mr X says that is not enough for the degree of distress caused, the excess noise for ‘some eighteen months’ and the efforts to chase the Council. I have explained above we would not necessarily be able to conclude the repairs would have happened immediately but for the Council’s delay. I have considered the level of payment. I understand Mr X’s dissatisfaction with it, however I consider it adequate overall.
  7. Mr X also says the proposed payment is inadequate for damage caused to the plasterwork in his and Mrs X’s home, for which he blames vibration from heavy vehicles driving over the loose covers. Essentially, this is a claim that property was damaged by negligence or some other fault by the Council. That can be addressed by an insurance claim and, in the absence of agreement, by court action. So the restriction in paragraph 3 applies to this point. Liability for such damage is not necessarily straightforward legally. The insurers and, if necessary, the court, could consider the evidence and the court could make a binding decision. There might be some cost to Mr and Mrs X but insurance might cover that and anyway the cost of court action is not necessarily in itself a decisive factor in whether we investigate. Overall, I consider it would be reasonable to pursue this point via insurance and, if necessary, court action. So the remedy for the complaint does not take account of this point.
  8. If we were to investigate, we might not be able to find all the delay from April 2020 to summer 2021 was the Council’s fault. COVID-19-related restrictions and the need to liaise with utility companies might well have played some role. Mr X says the Council’s records show it did not contact the utility companies until around 13 months after the Council was alerted to the problem. However, that would not account for all the time taken.
  9. Also, if we were to investigate, it is unlikely we would recommend a significantly greater remedy than the Council is offering. Mr X’s response to my draft decision said this was supposition based on no investigation. However, the level of financial remedy is based on the injustice to the people complaining. I already have a clear enough understanding of that. Therefore it is reasonable to say further investigation is unlikely to result in a significantly higher recommendation.
  10. Commenting on my draft decision, Mr X said if we were to investigate, we might find the Council’s faults were more significant and might ‘point to a wider series of issues.’ He said an investigation ‘may find that the level of culpability and breach of duty of care by the Council merits a more substantial payment.’ However, as I have explained, the level of financial remedy relates to the injustice caused; it is not punitive and is not directly linked to how much fault there was. We must be proportionate when deciding whether to investigate. We are already clear there was some fault and that the works took longer than they should have. The Council has offered a remedy for Mr X and Mrs X that I consider satisfactory. Therefore it would be disproportionate to pursue the complaint further.

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Final decision

  1. We shall not investigate this complaint. This is because the Council’s offer is a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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