The Ombudsman's final decision
Summary: Mr X complains the Council failed to carry out an agreement it made with him to limit the times its contractor would carry out noisy roadworks near to his holiday accommodation business. We found fault as the Council failed to carry out the agreement. It has already apologised to Mr X and taken remedial action. This has limited the injustice caused to Mr X to warrant a further remedy so we have completed our investigation.
The complaint
I have called the complainant Mr X. He complains the Council failed to carry out an agreement it made with him to limit the times its contractor would carry out noisy roadworks near to his holiday accommodation business. Mr X also complains about the way the Council responded to his complaints about the matter.
Mr X says he has been caused financial loss due to having to refund guests staying at the accommodation and distress in having to pursue his complaint with the Council.
The Ombudsman’s role and powers
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) 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) 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 read the documents submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
This section sets out the key events in this case and is not intended to be a detailed chronology.
The Council planned road works in the village where Mr X runs a holiday accommodation business. The Council arranged for a company to design and supervise the road works on its behalf. As the company is acting for the Council, I have referred to its actions as those of the Council for ease of reference.
In February 2021 the Council told Mr X it intended to close the road by his holiday accommodation in April 2021 for two weeks to carry out road works. The Council contacted Mr X two weeks before the start date and said it was having to delay the start of the works by a week. It would also carry out work to trees during the two-week road closure and would keep pedestrian and emergency access available.
Mr X contacted the Council raising concerns about safety and congestion issues caused by the road closure. Mr X expressed concern about noise and impact on guests at his holiday accommodation. Mr X had not accepted bookings for accommodation during the original two-week road closure so was disappointed works would now go ahead while he had guests staying. Mr X asked the Council to limit noise from the works to after 10 am and before 4 pm each day.
The Council agreed to limit the noise its road work contractor generated from the road works before 10 am and after 4 pm. The Council included this in the contractor’s method statement. The statement referred to ‘site normal working hours:07:00-17:30, however this may vary. But noisy plant can only be used between 10 am and 4 pm’. The Council made the same request to its tree contractor. Mr X appreciated the agreement and withdrew his complaint about the change in start date.
In May 2021 Mr X complained to the Council the contractor started noisy work for two days well before 08.30 am causing a nuisance. Mr X reported the contractor was unaware of the Council’s agreement and said they could work between 07.30 am and 11 pm.
The Council contacted and reminded the contractor about the agreement. The contractor said it had new workers on-site who were unaware of the agreement. The Council apologised to Mr X for the noise, explained the issue with new workforce and it had reminded the contractor of the agreement. The Council said there would be road sweeping and surface laying works at the site the next day. This meant that works would start at 8.30 am to complete them that day and enable the road to reopen.
Mr X complained to the Council’s Information Governance service about the works. Mr X expressed concern about the noise and considered he had been misled by officers who reassured him there would be no noise before 08.30 am. But what was agreed was no noise before 10 am. Mr X said the noise disturbed his guests for three days. Mr X asked for financial compensation from the Council to pass to guests to recognise the failure to manage its contractor. Mr X asked for the contractor to carry out any outstanding works between 10 am and 4 pm as agreed with officers.
The Council logged Mr X’s complaint and sent an acknowledgement setting out what it considered the issues to be, and outcome sought. These were; officers misled Mr X contrary to their code of conduct.
Officers promised Mr X works would not start before 10 am, but this had not happened with works started before then on three successive days.
The outcomes Mr X sought were ; Officers attending a face-to-face meeting to apologise.
The Council providing him with financial compensation to pass on to his guests.
The contractor carrying out outstanding works only between 10 am and 4 pm as previously agreed.
Any future works at his property to be subject to careful planning.
Mr X responded to the Council with an email clarifying the start times and said works started about 8 am on at least three successive days.
The Council’s response to Mr X’s complaint May 2021 The Council investigated Mr X’s complaint and issued a complaint report with its findings. The report looked at whether officers misled Mr X and why works started before 10 am. The report considered officers acted in good faith and told the contractor to ‘limit noise’ before 10 am and after 4 pm. This was through emails and the method statement. However, the request was to limit noise and not to delay starting work.
Officers had spoken to the contractor again after Mr X’s complaints in May 2021 about limiting noise. The works were taking place on the public highway and in a resident’s garden who was keen for the works to be done without delay to avoid disruption. Reducing working hours would have extended the time of work, impacted on other nearby residents and businesses, and meant a longer road closure.
The report explained officers apologised to Mr X about the noise caused by two workers unaware of the restrictions. Officers told Mr X about the road sweeping taking place the next day at 08.30 am and once the contractor completed resurfacing the road would reopen. The report said the highways service would not normally restrict working hours to those hours (between 10 am and 4 pm).
The report concluded officers had already apologised to Mr X so a face-to-face meeting to apologise was inappropriate during a global pandemic. The Council told Mr X about the road works nine weeks in advance. It was unfortunate the works were delayed for a week and Mr X was advised of this a fortnight before. But the Council did not normally compensate businesses for roadworks necessary to any of its statutory functions.
The reported noted Mr X’s request for any outstanding works be done between 10 am and 4 pm. The Council confirmed the works were now completed and an officer attended the site after Mr X’s complaints in May 2021. The officer ensured workers were fully aware of the agreement and adhering to noise limits. The Council said it would only carry out works needed at Mr X’s property once agreed and signed off by both parties.
The report concluded there was no evidence officers misled Mr X or that he was promised work would not start on-site before 10 am. The report found it was agreed noise would be limited before 10 am although this was not in the absolute control of the Council. But as the undertaking had been given to Mr X it partly upheld the complaint.
Mr X complained to the Council about the complaint response, and considered it not investigated properly. Mr X said his complaint was about excessive noise before 10 or after 4 pm. It was not that works should not start before 10 am or end after 4 pm.
The Council’s comments on the complaint The Council accepts it was an oversight that its Information Governance team misinterpreted Mr X’s complaint and did not pick up the issues about the start time. The investigation report looked at the issue of noisy works before 10 am as part of the investigation. It was agreed that noise was not limited before 10 am and is why the complaint was partly upheld. The Council confirms it was not a deliberate act nor an attempt to make it appear Mr X was lying. The Council apologised if this was how Mr X felt.
The Council says evidence shows officers contacted the contractor in April and again in May 2021 following Mr X’s further complaints of noise outside of agreed times. So, does not consider it would have changed the outcome of the complaint if the oversight not occurred. This is because there is no evidence to support Mr X’s complaint he was misled by officers, so the outcome would have remained the same.
The Council confirms Information Governance officers have been verbally reminded of the importance of reviewing all communications about a complaint before finalising the investigation. This is to ensure reports reflect any changes to the issues being raised and outcomes sought. The Council will follow up the reminder in writing to Information Governance.
My assessment
I do not consider the Council misled Mr X over the agreement made with the contractor to limit noise before 10 am and after 4 pm. The Council has provided evidence to show officers contacted the contractor about the agreement and it was included in the method statement for the road works. But I do consider the Council was at fault as it made an agreement with its contractor to limit the times of noisy work. And the Council failed to ensure the contractor acting on its behalf made workers aware of the agreement.
However, I consider that any injustice caused to Mr X by the fault is limited. It has been remedied by the Council’s apology and the action it had taken. This is because it acted promptly when Mr X raised complaints about noise, reminded the contractor of the agreement and sent an officer to the site to ensure adherence to the agreement.
The Council explained it agreed to allow the contractor an earlier start on one day for laying the road surface. The Council agreed this to ensure the works were carried out quickly to complete them and so reduce the impact on those residents affected. While Mr X was concerned about the impact on his business and wanting to limit the time certain works could be carried out, the Council is required to balance the needs of all residents when carrying out works. This may include starting road works early on a day to reduce the time a road is closed. This is a decision the Council is entitled to make, and it did tell Mr X.
Mr X wishes the Council to financially compensate him. I do not consider the injustice caused to Mr X is sufficient to request the Council to do so. In addition, there is no legal requirement for a council to pay compensation to businesses because of roadworks it has a statutory duty to carry out. There is always an element of risk in running a business and ultimately it was Mr X’s decision to compensate his guests.
The Council has accepted an oversight in way the Information Governance service interpreted Mr X’s complaint. The Council has apologised, and I consider this suitable action for it to take. This is because the Council partly upheld Mr X’s complaint despite the oversight and he has been able to have issues considered by making a complaint to us.
Final decision
I am completing my investigation. I have found fault by the Council as it failed to carry out an agreement it made with him to limit the times its contractor would carry out noisy roadworks near to his holiday accommodation business. The Council has apologised to Mr X and taken remedial action. This has limited the injustice caused to Mr X to warrant further remedy.
Investigator's decision on behalf of the Ombudsman