22. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong for issues 1-5. The evidence we have seen suggests HS2 followed the proper planning procedures when it closed the road without a diversion road in place, to carry out construction works.
Relevant Standards
23. HS2 completed the works subject to the High-Speed Rail (London-West Midlands) Act 2017 (HSRA Act). S2(1)(i) of the Act says that so long as it is for the purpose of the works authorised by the HSRA Act, HS2 can carry out and maintain such works of whatever description as may be necessary or expedient.
24. Planning process requirements are nationally established. HS2 follows a formal process to get planning permission (from local authorities, highway agencies and traffic authorities) for road closures. Under sub paragraph (4), schedule 4, Para 6 of the HSR Act 2017, HS2 must consult with the highway authority (in this case the local authority) before starting works. As part of this process the local authority review the application and consider factors such as traffic management, safety and community impact, and have the means to object formally (on the basis of public safety and attempts to reduce public inconvenience).
25. HS2 has the power to deviate from specific plans in the HSR Act 2017, as long as the highway agency consents. S2(1)(i) of the Act provides that so long as it is for the purpose of the works authorised by the Act, HS2 can carry out and maintain such works of whatever description as may be necessary or expedient.
26. HS2 ran public consultations in 2011 and 2017 for its pre-bill consultation and on its environmental statement. This was in line with its Community Engagement Strategy, the Planning Act 2008 and the Environmental Assessment of Plans and Programmes Regulations 2004 which require public consultation on nationally significant infrastructure projects.
27. HS2’s Community Engagement Strategy says it should ‘keep the public informed and updated on issues that affect their area’. It sets out four pillars of engagement: • Informing – we will keep you updated on issues that affect your area.
• Involving – we will involve you in opportunities as we plan and build HS2.
• Responding – we will listen to you and help you with your questions and concerns • Consulting – we will formally consult with you while we seek permission to build phase 2b. We now have permission to build Phase One [Phase One refers to the first major section of the railway HS2 was building. The works this case looks at were part of HS2’s Phase One].
28. PHSO’s principles of Good Administration (2009) says public bodies should provide an appropriate rationale for its decision-making, pitched at an appropriate level to help the customer understand how a public body has reached its view.
Issue 1 - HS2 did not construct a temporary diversion road when closing the A road for nine months for construction works.
29. HS2 appeared to follow the correct process, in line with the HSR Act 2017 in paragraphs REF _Ref216698554 \r \h \* MERGEFORMAT 23 and REF _Ref216698556 \r \h \* MERGEFORMAT 24 above, when it closed the road without constructing the diversion road.
30. We have seen a copy of an approval form (dated June 2020) showing HS2 consulted with the local authority on its decision to close the road, without a diversion road in place. This approval form shows the local authority consented for an alternative diversion route to be used.
31. Mr S pointed us to news articles (dating from October 2020) which say leaders of the District Council and local authority, together with local Councillors called for a delay to HS2's proposed 9-month road closure to part of the A road.
32. We recognise there was considerable local objection to the road closures. However, these media reports discuss objections that took place outside of the formal consultation process, as they were made in October 2020, after the local authority had signed the consultation, and consented to an alternative diversion three and a half months earlier in June 2020. As the formal pre-bill consultations and consultations with the local authority had been completed, it was under no legal obligation to take account of these objections. HS2 only had a duty to inform the public in line with its Community Engagement Strategy (see paragraphs 26- REF _Ref216700652 \r \h \* MERGEFORMAT 27).
33. We recognise how frustrated Mr S was by HS2 not constructing a diversion road when it closed the road for nine months. HS2 did not construct the diversion road, during the 9-month closure, because the approved plan was to close the A road without constructing a diversion road. Therefore, there is no indication of maladministration. We recognise this caused significant disruption to local people and services. In our consideration below, we will further set out why we do not consider it was unreasonable for HS2 to close the road without constructing the diversion road.
Issue 2 – HS2 did not • start or complete excavation of the tunnel during the 9-month closure • reopen the A road as soon it was able to • give a full or accurate explanation about why it closed the A road without constructing a temporary diversion road and did not explain what changed between October 2020 and June 2021, to enable the creation of a diversion road, when it told him a diversion road was ‘neither feasible or safe’ in October 2020.
34. HS2 told us due to the nature of construction work, plans often need to be revised during implementation, as practical on-site conditions can differ from the conceptual design and unforeseen changes may arise. This in itself is not an indication of a failing and S2(1)(i) of the HSR Act 2017 says that so long as it is for the purpose of the works authorised by the Act, HS2 can carry out and maintain such works of whatever description as may be necessary or expedient. We consider the information HS2 provided the public, and Mr S, about the reason for its decisions appeared to be reasonable and in line with PHSO’s principles of Good Administration and the standard set out in its Community Engagement Strategy.
35. HS2 told us in 2018 its preliminary design originally planned to close the road for four years with a diversion road in place. HS2 told us the preliminary design and proposals went through a series of designs changes (in line with its usual process) and were not finalised until June 2020. HS2 gave us a couple of examples of the types of considerations which led to it making changes. HS2 told us key stakeholders were unhappy the work would take four years. Other feedback from key stakeholders included concerns about the impact the work would have on a local recreational venue. In response HS2 reviewed its plans. Changes included reducing the area of land they had to work with (this included the stretch of land next to the local recreational venue alongside the planned diversion road) and closing the road for nine months as opposed to four years, but without creating a diversion road.
36. HS2 told Mr S it considered creating and removing a diversion road was environmentally disruptive and why closing the A road for nine months would cause less impact on the environment, less land take-up, reduce project expenditure and create less disruption to the community.
37. HS2 said that before excavation of the tunnel could take place, it was necessary to undertake extensive works which required the road to be closed. This included: • creating a safe and effective working area • vegetation clearance • moving utility services • creating an on-site haul route • extensive work including deep excavations and diaphragm walling and creating the extraction pit for the Tunnel Boring Machine (TBM).
38. HS2 told Mr S the work during the closure included constructing an extraction pit to enable the tunnel boring machine (TBM) to be removed. TBMs are large machines as the head of the machine occupies the full face of the tunnel. This work had to take place at the narrowest point of the land available to the project. It was not possible to have the diversion road in place whilst this work was undertaken. This was because there was not enough space between the diversion road and the cut and cover tunnel’s construction work, for the work to take place safely or for the delivery of complex lifting operations. Carrying out this work close to the diversion road would be a safety concern for motorists.
39. HS2 told Mr S it needed to move utility services before it was ready to excavate the tunnel. HS2 provided us with more detail about this. HS2 told us when it closed the road it had planned to divert a power cable supply at the same time as completing the section of the tunnel that would sit beneath the A road. When work started HS2 discovered the high-power cable was significant as it was supplying electricity to most of the city. It was not possible to divert this as planned because the original design had not foreseen this was a major power cable. During the nine-month road closure a new bridge (to carry the power cable across the site) had to be designed and approved through relevant planning processes and a specialist contractor had to be procured before works could start. This unforeseen work delayed HS2’s progress on constructing the section of the tunnel beneath the A road and it was not possible for HS2 to finish this during the nine-month closure.
40. HS2 told us it evaluated the option of extending the closure for a further 12 months but decided against this in response to concerns raised by the local communities and stakeholders. HS2 said it had made sufficient progress constructing the TBM extraction pit, which meant it had enough space to create the diversion road during the nine-month closure, and was able to re-open the A road after nine months (as planned) with the diversion road available for use when needed.
41. HS2 told us it was able to complete some of the excavation work between October 2020 and June 2021. It said it used a technique called diaphragm walling which is not visible from the surface. Diaphragm walling involved cutting two 15-meter-deep slots and filling these with concrete. This creates a foundation wall to support the tunnel which is dug out from its centre.
42. Mr S considers there was sufficient space to create the extraction pit whilst leaving the A road open, or even if the diversion road was constructed. He says later events show HS2 were in fact able to work on digging the extraction pit with the diversion road in use.
43. Mr S said at HS2’s public webinar in October 2020, the central reason HS2 gave for not creating the diversion road was lack of space to safety lift extract the TBM machinery. Mr S does not consider this was a valid reason to close the road because the diversion road could have been closed for a short period to allow for this. He also points out that later events show HS2 did complete the TBM extraction with the diversion road in place, by lifting from the opposite side of the extraction pit, away from the diversion road.
44. Mr S also says: • he doesn’t consider moving and laying utilities from the A road onto a different route would be a significant factor when deciding to close the road for 9 months • clearing vegetation was easily handled • he does not believe HS2 diverted all utilities during the closure because a roadwork notice in May 22 said it would be carrying out utility diversions.
45. We consider the explanations HS2 provided about the unforeseen circumstances it faced are reasonable. It has explained why it was unable to complete all excavation works it had planned to do, during the closure. None of Mr S’s comments undermine the main points from the explanation HS2’s gave us. We accept HS2’s explanations: • it did not complete the tunnel (that would sit under the A road) as originally planned because of unforeseen complications with diverting the high-powered cables. However, it did make progress on the diaphragm walling between October 2020 and June 2021.
• it was unable to reopen the road while it developed a bridge to carry a high-power cable across the site • it did not have enough space to construct or open the diversion road whilst creating the TBM extraction pit and completing the diaphragm walling • because of the unforeseen complications which led to delays, it reconsidered its options and went on to open the diversion road once it had finished creating the TBM extraction pit • we acknowledge clearing vegetation may be easily handled and HS2 may have needed to divert further utilities after May 22, but these do not undermine HS2’s explanations.
46. We do not consider Mr S’s comments in paragraphs 42 or 43 undermine HS2’s explanations. This is because HS2 told us its preliminary proposal to create the diversion road before starting work was not accepted by key stakeholders, because it would have caused 4 years of disruption. The final detailed design intended to create the TBM extraction pit for the TBM and start work on the cut-and-cover excavation works to create the tunnel, at the same time, during the 6-month road closure. This was approved by key stakeholders including technical specialists. We recognise the final detailed design plan later became redundant because HS2 could not complete the cut-and-cover excavation work as intended because of the high-power cable, and it created the diversion road.
47. We recognise HS2 did not give Mr S the full details about the information behind its decision making (for example the unforeseen issues it experienced high-power cable), however it did provide him a summary of its rationale. We acknowledge Mr S was frustrated by the limited level of information HS2 provided, which was not enough to persuade him of why HS2 did not create the diversion road or complete the tunnel as planned within 9-months.
48. It is not HS2’s responsibility to provide high level detail when explaining its engineering plans to the public. These high-level explanations are considered as part of the consultation process with the local authority and highway agency (and these organisations have the means to object on a basis of public safety or an attempt to reduce public inconvenience).
49. We consider the information HS2 provided the public, and Mr S, about the reason for its decisions appeared to be reasonable and pitched at a suitable level for the public. This was in line with PHSO’s principles of Good Administration which says public bodies should provide an appropriate rationale for its decision-making, pitched at an appropriate level to help the customer understand how a public body has reached its view.
50. HS2 appeared to meet its standard set out in its Community Engagement Strategy ‘to keep the public informed and updated on issues that affect their area’. We have also seen HS2 offered to meet with Mr S to show him the physical and technical challenges the project faced, and how that influences plans. Mr S declined this opportunity.
51. We understand Mr S will be disappointed with our decision to not look at these issues. We have not found indications of failings in HS2’s decision to start the works without creating the diversion road, but we accept Mr S was frustrated by the significant disruption this caused to local people and services. We recognise this was particularly distressing for Mr S because HS2 did not meet the expectation it created, that it would have the diversion road in place during the road closure (as it had said it would at the public meeting in November 2018).
Issue 3 – HS2 did not consult with or provide an opportunity for the community to object
52. HS2 ran public consultations in 2011 and 2017 for its pre-bill consultation on Phase One and on its environmental statement. This was in line with its Community Engagement Strategy, the Planning Act 2008 and the Environmental Assessment of Plans and Programmes Regulations 2004 which require public consultation on nationally significant infrastructure projects.
53. In May 2020 HS2 formally consulted with the local authority on its decision to close the road.
54. Following the pre-bill consultation, and the formal consultation process with the local authority, there is no legal requirement for HS2 to consult with the public about individual road closures. HS2 said the announcement of the road closure was not part of a formal public consultation and was never intended to be an invitation for comments or suggestions because all viable options had been examined by design, engineering, and planning professionals, HS2 and the local authority.
55. In line with its Community Engagement Strategy set out in paragraph REF _Ref216700652 \r \h \* MERGEFORMAT 27, HS2 was required to inform the community about the work which would take place. We have seen it did this at various stages: • in November 2018 HS2 held a community engagement event to explain its proposals and share its early designs.
• HS2 provided notification (via a leaflet and online) in September 2020, which was four weeks in advance of the road closure in October 2020.
• HS2 held a public webinar in October 2020 (two days after the closure) to explain the reasons behind the closure.
56. We accept it was not practical or reasonable for HS2 to consult with or invite the public to provide comments, suggestions or objections at this stage, and there was no requirement for it to do so in line with its Community Engagement Framework. We have not seen indications of maladministration.
Issue 4 - HS2 only told the community of the plans to close the A road four weeks before it started work
57. HS2, in line with its Community Engagement Framework, should inform local communities at least two weeks in advance of works taking place.
58. HS2 told us when it became aware creating a diversion road would not be practical it took time to develop a viable solution and discuss this with the local authority and key stakeholders.
59. As part of the formal consultation, the local authority approved the plan for the road closure in June 2020. HS2 told us it was not ready to tell the public until September 2020 because it needed to complete its construction-readiness preparations. This included employing the workforce, hiring equipment and drafting diversions. HS2 accepts this was not an ideal timeframe but says it was a pressured programme.
60. HS2 also told us it avoids giving notice too early as there is a risk people will forget. It also avoids giving notice in the summer period when people are likely to be on vacation.
61. HS2 provided notification (via a leaflet and online) in September 2020, which was four weeks in advance of the road closure in October 2020. HS2 held a public webinar in October 2020 (two days after the closure) to explain the reasons behind the closure.
62. We understand why Mr S was frustrated about not having earlier communication about the road closure. The change to the planned road closure (of not creating the diversion road as proposed in November 2018) was significant. We recognise the impact a lack of information about such a significant disruption had on Mr S and other members of the public.
63. HS2 have accepted it did not share information about the closure within an ideal timeframe. However, we cannot say this is an indication of maladministration because:
• the notice was within the timeframe set out in HS2’s Community Engagement Framework • HS2 held a public webinar. This was in line with its Community Engagement Strategy which say it will create local events that are open to the public to answer questions or concerns • we accept HS2 has well considered reasons (paragraphs REF _Ref219105337 \r \h \* MERGEFORMAT 58 to REF _Ref219105339 \r \h \* MERGEFORMAT 60) for sending the notification when it did.
Issue 5 – Mr S complains that HS2 did not respond to his remedial suggestions
64. HS2 resident’s charter encourages its workforce to listen to local concerns and be considerate and accountable for their actions.
65. HS2's Community Engagement Strategy says it will provide free and accessible options for communities to contact us to seek information and raise their concerns. We will respond to their requests in a timely and comprehensive way.
66. In November 2020 Mr S wrote to the ICC and made remedial suggestions for HS2 to: • reopen the A road while the relief road is constructed • not make any other road closures, in the area at the same time • extend working hours to reduce the 9-month closure.
67. We consider HS2 had an opportunity to respond because the ICC shared the concerns with HS2 staff member 1 (a member of HS2’s public response team) and told Mr S he had asked HS2 to respond. Mr S also shared his suggestions with HS2 staff member 1 in March 2021.
68. Mr S’s remedial suggestions were different from his general concerns, because these were specific requests about how he wanted HS2 to carry out its work.
69. There is no guidance that says HS2 should have considered Mr S’s requests. We do not consider it reasonable to expect HS2 to consider requests about how its work should be carried out from the public. This is because in line with its formal planning process the practical options have been examined and planned by design, engineering and planning professionals, and have gone through the proper planning permissions and consultations with the local authority.
70. We consider HS2 responded to Mr S’s first suggestion to ‘reopen the A road while the relief road is constructed’ because this is the basis of its response to Mr S’s complaint about the road closure.
71. In June 2021 and February 2022 HS2 invited Mr S to a meeting to discuss the physical and technical challenges the project faced, which influence how work is planned. This was in line with HS2’s community engagement strategy and would have been an opportunity for HS2 to respond to the other suggestions (by explaining why it had not considered these), but Mr S declined these opportunities.
72. In February 2022, when HS2 sent its final response, it told Mr S it did not consider it proportionate nor reasonable to provide the level of explanation Mr S requested. We consider HS2’s response appeared to be proportionate and appeared to meet its responsibilities under its Resident’s Charter and Community Engagement Strategy.
73. We recognise Mr S will be disappointed by our decision to not consider this issue further because he did not receive a comprehensive response to his remedial suggestions.
Issue 6 - Mr S complains about the way HS2 and the ICC handled his complaint. Mr S says: • HS2 took too long to respond to his complaint • HS2 incorrectly said he had not met the three-month time limit required to escalate his complaint to stage 2 • The ICC said it was not ready to look at his complaint because HS2 had not closed the complaint.
74. We have considered the complaints about the way HS2 and the ICC handled these complaint handling issues jointly because their handling is interlinked.
75. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. We have seen indications of failings in the way HS2 and the ICC responded to Mr S’s complaint. We discussed this with HS2 and the Department for Transport (DfT) which is representing the ICC.
76. As a result of our discussion HS2 and DFT said they held a workshop with the newly appointed Resident’s and Construction Commissioner (which has superseded the ICC role), to discuss our thinking and the handling of Mr S’s complaint. HS2 told us that at this meeting the Residents’ and Construction Commissioner (the Commissioner), DfT and HS2 recognised there was a breakdown in communication which led to a misunderstanding of how Mr S’s complaint was being handled between the former ICC and HS2. HS2 told us the organisations acknowledged this would have been confusing for Mr S and led to a delay in him getting a final response. HS2 and DfT told us they had identified learning and agreed to write to Mr S to provide a joint apology and to confirm the lessons learned and actions to be implemented. Following this, we consider HS2 and the DfT have committed to doing enough to put right the impact of these events on Mr S. Therefore, we consider this resolves the complaint for now and we do not consider it proportionate to take the matter further at this stage.
Relevant Guidance
77. HS2's online guidance on how to complain about construction includes a two-step process.
• Step 1: asks complainants to bring their complaint to HS2’s public response team.
• Step 2: after HS2 sends its full complaint response, if the complainant is still unhappy, they can ask HS2 to take the complaint to the ICC to review the complaint and how HS2 responded to it. The guidance also says the complainant can contact the ICC themselves to request a review.
78. The guidance also says: • we aim to [tell you the outcome of the investigation] within 20 working days, though we will always try to be quicker than this.
• If we are going to take longer than 20 working days, we will let you know why and when you will get a full response from us.
• you must make your request for a Step 2 review within three months of receiving the final response.
79. HS2’s Community Engagement Strategy says it will provide free and accessible options for communities to contact us to seek information and raise their concerns. We will respond to their requests in a timely and comprehensive way.
80. PHSO’s UK Central Government Complaint Standards says organisations should ‘make sure they respond to complaints at the earliest opportunity. They consistently meet expected timescales for acknowledging a complaint. They also give clear timeframes for how long it will take to look into the issues, taking into account the complexity of the matter’.
81. PHSO’s Principles of Good Complaint Handling, says public bodies should: • ensure their complaints procedure is simple and clear.
• make it clear to complainants when they have provided their final response to a complaint • provide clear and accurate information about the next stage of the complaint process so the complainant is clear about what to do next if they remain dissatisfied.
• clearly direct complainants to the most appropriate way (for example through alternative appeals mechanisms) if the complaints procedure is not the most appropriate way for a customer to take forward their concern.
• ensure the complaint is dealt with in a co-ordinated way with other providers.
82. The ICC is independent of HS2.
What happened according to the correspondence we have seen:
83. Mr S raised a complaint with HS2 on 4 Oct 2020. HS2’s contractor responded on 4 November 2020. On 10 November Mr S chose to escalate his complaint with the ICC as part of HS2’s Stage 2 complaints process. This was within the 3-month timeframe for referring a stage 2 complaint.
84. On 16 November 2020 the ICC told Mr S he had raised the matter with HS2. On 9 December 2020 HS2’s staff member 1 responded to Mr S with a review from the Public Response Team. Following this Mr S still wanted to escalate this complaint as a stage 2 complaint. This was still within the 3-month timeframe and HS2 staff member 1 told Mr S the ICC was considering his letter.
85. On 26 February 2021 the ICC wrote to Mr S and told him in line with the ‘complaints process’ he was unable to examine the case until HS2 had completed all its stages and confirmed it had closed its process. He said HS2 was looking into the issue as a matter of urgency.
86. On 15 March and 19 April 2021 Mr S asked the ICC to intervene because HS2 had not sent its response. The ICC replied saying he was ‘unable to proceed’ because HS2 had confirmed Mr S’s case has not yet been closed.
87. On 16 July 2021 HS2 staff member 1 wrote to Mr S and acknowledged his dissatisfaction with the complaint response. He invited Mr S to a meeting with the ICC, and representatives from HS2.
88. Mr S replied on 10 August 2021 declining the offer of a meeting and he included a revised complaint letter. On 18 October 2021 HS2 staff member 1 said he would respond to points Mr S raised in his revised complaint.
89. On 20 December 2021 Mr S asked the ICC if he could escalate his complaint because he had still not received a response from HS2.
90. On 14 February 2022 HS2 staff member 1 responded to Mr S. On 3 April 2022 Mr S asked the HS2 to confirm it had completed its complaints process so he could escalate the complaint to the ICC. On 12 April 2022 HS2 Staff member 2 (HS2 Staff member 1’s manager) sent a final response to Mr S. It said Mr S could not escalate his complaint to stage 2, because he had not requested this within 3 months (of HS2’s response on 4 November 2020).
91. On 21 June 2022 the ICC wrote to Mr S. He said there may have been some confusion about the complaints process. He said his remit is to review final decisions made by HS2’s own process. If a decision has not been made under this process, then the complaint cannot come to the ICC for review.
Analysis:
Mr S says: • HS2 said he had not met the three-month time limit required to escalate his complaint to stage 2 • the ICC said it was not ready to look at his complaint because HS2 had not closed the complaint.
92. We have three different versions about what happened from Mr S and the ICC, and HS2.
93. Mr S told us between 10 November 2020 and 12 April 2022 the ICC, HS2 staff member 1 and himself were proceeding on the basis he had an ongoing complaint with HS2. Mr S told us he was not aware HS2 were not responding to him as part of its complaint process. He says he continued to refer to the issues as his ‘complaint’ throughout his correspondence and emails were headed ‘complaint’.
94. The ICC told us: • it liaised with HS2 through HS2 staff member 1 and asked HS2 to respond.
• it could only intervene once HS2 has exhausted its process; he felt it best for HS2 to respond first, in order for him to understand HS2's positions on the matters raised and undertake a review • in April 2021 he confirmed with HS2 the case remained open • he chose to deal with the complaint using mediation rather than using the complaints process.
95. HS2 told us it has a different understanding of these events. HS2 understood: • only the complaint Mr S made on 4 Oct 2020, which it responded to on 4 November 2020, was part of its complaint process • the ICC was responsible for the complaint after Mr S escalated this to Stage 2 on 4 November 2020 • it was not responsible for correspondence with Mr S after 4 November and did not have an open case with him, at that time • Further ongoing HS2 involvement was treated as engagement issue (managed through the engagement/ public response team), not within the complaint route • the ICC did not accept Mr S’s case for escalation and instead exercised his remit to mediate • it only supported the ICC with his correspondence and supported the ICC to mediate • When Mr S asked to escalate his complaint on 3 April 2022 Mr S had already referred his case to the ICC in November 2020. HS2 had to decline; he had already escalated his case and was out of time to raise new complaints.
96. HS2 told us its engagement team were not aware of the communication between Mr S and the ICC, or of Mr S’s correspondence to HS2 staff member 1. HS2 told us HS2 staff member 1 was not acting in line with its guidance to pass correspondence to the engagement or complaints team and they should not have continued to be involved in the process.
97. HS2 said it discussed Mr S’s request to escalate his complaint to Step 2 with the ICC in April 2022. The ICC told HS2 he wished to write to Mr S himself. HS2 said for this reason it was not appropriate for HS2 to tell Mr S he had already exhausted the step 2 process if the ICC had not already done so. It said this made responding to Mr S challenging. HS2 acknowledges its response to Mr S about why it could not escalate the complaint was not as good as it could have been. HS2 told us it would have preferred to tell Mr S he had already exhausted the Step 2 process but was acting as the ICC requested.
98. HS2’s understanding of the events is not consistent with the communication we have seen where the ICC told Mr S he was not ready to escalate his complaint to the ICC, because HS2 had not closed the case.
99. HS2’s understanding that Mr S had exhausted the step 2 process is not consistent with the ICC’s communication with Mr S in June 2022. The ICC wrote ‘there may have been some confusion about the complaints process’. He maintained that if a decision has not been made under [HS2’s own] process, then the complaint cannot come to the ICC for review.
100. The evidence we have seen supports Ms S’s version of events: • the ICC told Mr S HS2 was still considering his case on 26 February 2021, 27 April and 23 December 2021 • HS2 staff member 1 was continually corresponding to Mr S about his case between 16 November 2020 and 14 February 2022 using HS2’s complaints email address • Mr S referred to the issues he raised as a ‘complaint’ throughout his correspondence with HS2 staff member 1 • we have not seen any evidence HS2 told Mr S it was responding to him as a public engagement issue (rather than via its complaint process) until 12 April 2022.
101. We consider Mr S followed step 1 and step 2 of HS2’s complaints policy correctly. The evidence suggests the organisations were not following the escalation process in line with HS2’s policy. There was a lack of consistency between the processes HS2 and the ICC were following.
102. We consider there is confusion and discrepancies with the process HS2 and the ICC followed, and their communication with Mr S. There was clearly a misunderstanding about what process was being followed and HS2’s understanding of what process was being followed is not consistent with the ICC or HS2 staff member 1’s communication to Mr S. The confusion and misunderstandings with the way Mr S’s complaint was handled by HS2 and the ICC do not appear to be in line with our Principles of Good Complaint Handling.
103. The communication between the ICC and HS2 staff member 1 is not available, and HS2 staff member 1 is no longer employed by HS2 so we do not know what was discussed. HS2 and DfT do not have this correspondence. Without this it is not possible for us to say what contributed to the confusion in the process.
104. The ICC said he chose to deal with the complaints using mediation rather than using the complaints process. We have not seen evidence the ICC followed the general principles of mediation or our complaints standards when he chose to use mediation.
105. The charity Advicenow has published a guide on mediation. This says for mediation to be successful both sides have to be willing to listen to the other’s point of view, and to work together to find a solution. There are indications the ICC did not follow these principles because we have not seen evidence: • the ICC explained he was using a mediation approach • Mr S agreed or consented to mediation • the ICC explained what the alternative option would be if Mr S did not accept mediation.
Mr S says HS2 took too long to respond to his complaint
106. Mr S experienced delays (when his complaint was looked at by HS2’s public engagement team) between 26 February 2021 and 12 April 2022. There were long periods of time Mr S was waiting for a response and an outcome.
107. This was not in line with PHSO’s UK Central Government Complaint Standards because we have not seen HS2: • responded at the earliest opportunity • consistently meet expected timescales for acknowledging a complaint • gave clear timeframes for how long it will take to look into the issues, taking into account the complexity of the matter.
108. HS2 maintains it did not delay a response, because it had no role to respond at that time because it did not have an open complaint for Mr S, and it was only supported the ICC with his correspondence.
109. There is a lack of clarity around roles and responsibilities, and it is unclear during this time whether it was HS2 or ICC responsibility to respond. The correspondence we have seen suggests HS2 staff member 1 was dealing with Mr S’s complaints as an open case and was responsible for responding. We accept HS2 has told us it considers it did not have a role to respond at that time. There are indications of a breakdown in the process HS2 and the ICC were following which contributed to this delay.
Resolution
110. We have seen indications of failings in the way HS2 and the ICC responded to Mr S’s complaint and we accept Mr S says the handling of his complaint left him frustrated. Mr S highlighted the inconvenience of spending over a year of his own time chasing the complaint, in hope of getting HS2 and the ICC to respond to his outstanding queries.
111. Mr S told us he does not want a financial remedy.
112. We discussed this with HS2 and DfT and they agree to provide a joint apology (within four weeks of the date of the Primary Investigation statement) and take forward learning around their complaints processes to avoid a repeat of what Mr S experienced when making his complaint.
113. HS2 told us it has already made the following changes: • All relevant HS2 Ltd and contract partner staff have undertaken complaints handling training with clear criteria for accepting, investigating and responding to complaints.
• Response times are closely managed and if a reply cannot be issued in line with published timescales the complainant is updated with the reason why and when they will get a response.
• Complaint responses are sent from the HS2 Enquiries public mailbox. Individual email accounts and internal mailboxes (HS2 Complaints) are no longer used for public correspondence.
114. HS2, the DfT and the Commissioner agreed to take forward the following actions within three months of the date of our Primary Investigation statement: • To complete a full review of all published Commissioner documentation and amend these where necessary to clarify the post’s roles responsibilities and procedures in relation to HS2 complaints.
• On accepting a complaint for escalation, the Commissioner will confirm their role and responsibilities with the complainant and what happens next; this will include what they can and can’t do and the timescale they expect to take.
• When providing their decision on a complaint the Commissioner will set out recommendations and remedy (if any), along with advising the next step of the process should the complainant remain dissatisfied.
• The Commissioner will meet with HS2 monthly to ensure there are clear lines of communication relating to escalated construction complaints.
• The Commissioner’s mailbox will be updated to provide a standardised reply, providing information to correspondents reiterating the terms of reference of the commissioner, indicating how enquiries will be handled and indicative response times.
115. Following this, we consider HS2 and the DfT have committed to doing enough to put right the impact of these events on Mr S.
Complaints about the Independent Construction Commissioner
Issue 7 – Mr S says the ICC did not explain what complaints were outside its remit
116. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. We have seen indications the ICC did not clearly explain what complaints were outside his remit or why. We accept Mr S says this left him frustrated and because the ICC did not explain its remit, it did not manage his expectations and caused unnecessary delays.
117. We discussed this with the DfT (which is representing the ICC), and it agrees to provide an apology and do a full review of all published Commissioner documentation and amend these where necessary to clarify the post’s roles responsibilities and procedures in relation to HS2 complaints.
118. We hope Mr S is reassured DfT has taken his complaint seriously and taken action on it. Following this remedy, we have decided the DfT has done enough to put right the impact of this event on Mr S, and there is nothing further an investigation by us would achieve.
Relevant Guidance:
119. The ICC’s website said the ICC cannot consider complaints relating to planning conditions and other matters that are subject to the approval of statutory authorities.
120. PHSO principles of good administration says public bodies should: • aim to ensure that customers are clear about their entitlements; about what they can and cannot expect from the public body • do what they say they are going to do. If they make a commitment to do something, they should keep to it or explain why they cannot. They should meet their published service standards or let customers know if they cannot.
121. PHSO's UK Central Government Complaint Standards says organisations should identify when issues raised in a complaint should be addressed via another route at the earliest opportunity.
Consideration:
122. Mr S asked the ICC to fact check and give him an opinion on HS2’s response about whether the diversion road was possible or unsafe from an engineering perspective. He also asked the ICC to consider his remedial suggestions.
123. The ICC told us it is not within the scope of his role to decide if technical decisions are right or wrong. Rather it is his role to consider whether HS2 attempted to answer the complaint reasonably
124. In December 2021 the ICC told Mr S about his remit. He said: • my remit is to review the decisions taken by HS2 in response to a construction complaint; they must have completed their process in order for me to review the decision • if the unresolved issue falls under the jurisdiction of a local planning/highways authority it is for them to examine whether HS2 is in breach of their statutory regulations • I might comment on the performance of HS2 in handling a complaint.
125. These statements do not appear to explicitly or clearly set out which of Mr S’s complaints the ICC considered were within or outside his remit.
126. We are not persuaded by the ICC’s statement that Mr S’s complaint fell under the jurisdiction of a local planning or highway authority. We consider this is incorrect because in line with the HSR Act 2017, HS2 was only required to consult with the statutory authorities; the decision to close the road was not subject to a consent process or the approval of statutory authorities.
127. In 21 April 2022 the ICC told Mr S he would review the correspondence but said ‘as I have stated before some of these might fall outside my remit’. We have not seen any earlier explicit reference which sets out which complaints may be in or out of remit.
128. In the ICC’s final response (21 June 2022) the ICC told Mr S many of the points do not fall under the ICC remit. He said his remit is to review final decisions made by HS2’s own process; if a decision has not been made under this process, then the complaint cannot come to the ICC for review. The meaning of this statement is unclear.
129. The ICC explained he had attempted to keep the engagement with Mr S open as he had hoped mediation may have provided a way forward. He apologised he could have rejected the claims at an earlier stage, by outlining his remit.
130. We recognise the ICC considered the complaint fell outside the ICC’s remit, however we have not seen evidence the ICC clearly told Mr S what his remit was or provided information about an alternative appropriate route he could take to pursue his complaint.
131. The ICC was corresponding with Mr S between 16 November 2020 and 21 June 2022 (a one-and-a-half-year period) and there is evidence the ICC led Mr S to believe it would ‘accept an escalation when HS2 had completed its process’.
132. We have not seen any evidence before 21 June 2022 of the ICC telling Mr S he would not be able to answer parts of the complaint.
133. This communication does not appear to be in line with our principles of good administration at paragraph REF _Ref216868897 \r \h \* MERGEFORMAT 118.
Issue 8 - The ICC did not address Mr S’s remedial suggestions
134. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.
135. The ICC told us it is not within the scope of his role to decide if technical decisions are right or wrong. Rather it is his role to consider whether HS2 had attempted to answer the complaint reasonably.
136. We accept it was not the ICC’s role to consider Mr S’s remedial suggestions, because the ICC is not able to make technical decisions relating to construction as these need to would need to go through the extensive consultation process. Therefore, we do not consider indications of maladministration because the ICC did not address Mr S’s remedial suggestions.
Issue 9 - The ICC did not review HS2’s decision to close the road
137. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. We have seen indications the ICC did not provide a proportionate response to Mr S’s complaint. We discussed this with the DfT (which is representing the ICC) and it agreed to provide an apology, and it agreed with the Commissioner to take forward the following actions: • On accepting a complaint for escalation, the Commissioner will confirm their role and responsibilities with the complainant and what happens next; this will include what they can and can’t do and the timescale they expect to take.
• When providing their decision on a complaint the Commissioner will set out recommendations and remedy (if any), along with advising the next step of the process should the complainant remain dissatisfied.
138. We hope Mr S is reassured the DfT has taken his complaint seriously and taken action on it. Following this remedy, we have decided the DfT has done enough to put right the impact of this event on Mr S, and there is nothing further an investigation by us would achieve.
139. On 21 June 2022 the ICC provided a response about HS2’s decision to close the road. The ICC said HS2 has been open about saying once it examined the detail of a possible new road diversion for the A road and the final construction plans for the tunnel, it became clear that the initial plans needed to be changed. He did not find that unreasonable.
140. This response appears to be very brief and not proportionate to the complaint Mr S had brought. We do not consider this to be in line with PHSO’s UK Central Government Complaint Standards which say complaint responses should: • be thorough and fair: Colleagues should actively listen and demonstrate a clear understanding of what the main issues are for the service user who has made the complaint, and the outcomes they seek.
• give fair and accountable responses: give a clear and balanced account of what happened, based on established facts. Each account compares what happened with what should have happened. It gives clear references to any relevant legislation, standards, policies, procedures or guidance, based on objective criteria.
141. We want to thank Mr S for all the information he gave us to help us complete this primary investigation. We hope Mr S has found our explanations helpful and understands the reasons for our decision to close the case at the primary investigation stage. We hope Mr S is reassured HS2 and the DfT has taken his complaint seriously and are taking action on it.