Report of Director of Law and Democracy

DELEGATED

AGENDA ITEM 8

REPORT TO STANDARDS COMMITTEE

29 MARCH 2007

REPORT OF DIRECTOR OF LAW AND DEMOCRACY

LOCAL GOVERNMENT OMBUDSMAN - 2006/07 - VARIOUS

SUMMARY

This report provides details of some of Stockton’s Local Government Ombudsman’s (“the Ombudsman”) cases in 2006/07, together with information about other issues relating to the Ombudsman.

RECOMMENDATION

It is recommended that the report be considered.

DETAIL

Ombudsman Decisions

1.Attached at Appendix 1 to the report are three cases determined by the Ombudsman during 2006/07. The details have been anonymised to protect the identity of the complainants and any third parties.

2.The cases are considered to be good examples of the Ombudsman’s approach to alleged maladministration and a useful guide to highlight to services how best to avoid actions or omissions which might lead to maladministration causing injustice.

Ombudsman Reports

3.During 2006/07 there have been three Stockton cases where the Ombudsman has found maladministration causing injustice. The details of these cases are as follows:-

Case A

The Local Government Ombudsman issued a report following an investigation into a complaint about the Council’s handling of a grant application to the Football Association. The Ombudsman found that the complainant had suffered injustice as a result of maladministration. The Council was therefore required to consider the Ombudsman’s report and to let the Ombudsman know what action it proposed to take as a result of the findings.

A copy of the investigation report was placed in the Members’ Library.

A report was submitted to Cabinet about the matter on 10 August 2006.

The report explained that the maladministration related to:-

• a failure to keep the Steering Group properly informed
• a failure to carry out work on the project for over six months in 2004
• a failure to explain why the Project Steering Group was effectively suspended in February 2004

It was accepted that there were difficulties in submitting a bid for funding for the Council-owned sports ground at a time when the Council also supported an application for a private sector bid in respect of a sports ground in close proximity to the Council-owned ground. Ultimately the private sector bid was successful and the Council’s bid for its own sports ground was not pursued further. The Ombudsman noted that the Council had gone someway to make up for this by approving a £50,000 capital allocation to help in obtaining additional funding from external sources to make improvements at the Council-owned sports ground. The Ombudsman also acknowledged that the failure to secure grant funding from the Football Association was not due to any maladministration by the Council.

The Ombudsman considered that the publication of her report and the publicity it would receive was an appropriate remedy for the maladministration identified. The Ombudsman hoped that the Council would tender appropriate apologies and re-offer a place on the Project Steering Group to the Residents Association, in addition to reviewing its procedures to ensure accurate information was given in situations like this.

Cabinet was advised that such a review would be undertaken by the Corporate Director of Development and Neighbourhood Services and would be carried out within six months.

Cabinet recommended to Council and Council agreed that:-

1. The Council should offer appropriate apologies as referred to in the Ombudsman’s report and should make a further request for a nomination from the Residents Association to sit on the Project Steering Group;
2. Procedures should be reviewed to ensure accurate information was provided to applicants for grant funding in situations like this; and that such a review should be undertaken by the Corporate Director of Development and Neighbourhood Services and be carried out within six months; and
3. The Ombudsman should be notified of the action taken in response to the report.

Case B

The Ombudsman investigated the way the Council changed its procedures in relation to the licensing of hackney carriage vehicles.

As required, therefore, the matter was reported to Cabinet (on 1 February 2007).

Cabinet was advised that when applications were made to licence a vehicle as a taxi, the Council required the owner of the vehicle to produce the V5 registration document or log book. This provided evidence of:-

• Who the registered keeper was;
• Previous accident damage resulting in an insurance “write-off”;
• Chassis and engine numbers that may have helped indicate whether the vehicle had been stolen or stolen parts had been fitted.

Until 1 April 2005 the Council issued taxi licences for used vehicles pending later production of the V5 document by the owner. Experience showed that many drivers did not produce their V5 documents and licensing staff were then required to send reminder letters requesting that the document be produced.

The Council therefore decided to tighten up the practice by accepting applications for the licensing of vehicles, but not issuing the licence plate until the owner of the vehicle produced the V5 document showing him as the registered keeper.

The Ombudsman concluded that the previous practice did cause the Council problems and it was entitled to change it. However, the Ombudsman criticised the Council for failing to adequately consult with trade associations about the proposed change and to give proprietors and drivers reasonable advance notice of the change. The Ombudsman concluded that this constituted maladministration. The Ombudsman also concluded that maladministration had also occurred because the Council should have drafted an article in the Trade Times more carefully, as it gave the misleading impression that the taxi associations were aware of the change in advance and had agreed to it.

The Ombudsman found that the Complainant suffered injustice as a result of the maladministration. The maladministration related to:-

• failing to consult the associations contrary to its policy and publicity;
• failing to give taxi drivers adequate notice;
• publishing a misleading article implying that the associations had agreed to the change.

In compiling her report, the Ombudsman looked into the issues surrounding the production of the V5 document by the Complainant during 2004. The Complainant provided the Ombudsman with an amended V5 which appeared to be date stamped by the Council has having been received by the Council on 29 June 2004. The V5 in question was not date stamped on the front page, as was standard practice for Council staff, but on the third page. The Complainant in question had convictions for making a false statement to obtain insurance and for using a document with intent to deceive. It was not clear why, if the Complainant had a date stamped V5 document in his possession from 29 June 2004, he did not produce this at an earlier stage in order to resolve the argument in his favour. The Ombudsman appeared not to have addressed these issues. The Ombudsman also stated in her response that “In the course of this investigation both the Council and the Complainant had provided me with information which subsequently was shown to be incorrect”. From the Council’s point of view, the accuracy of this statement was disputed, and the Ombudsman had been asked to clarify to what information she was referring in this passage (insofar as the allegation about the Council was concerned), but had not responded to this request.

The Ombudsman recommended the payment of the sum of £250 as compensation for the time and trouble in the Complainant bringing the complaint.

It should also be noted that the Complainant was not entitled to any sum for his alleged loss of earnings.

The Ombudsman also urged the Council to meet with the trade associations to discuss their compromise proposal. The trade associations had a membership of 150 whilst the Council licences 700 persons. As the trade associations did not represent all taxi drivers within the Borough it was proposed that as part of a wholesale review of licensing policy the compromise proposal (see below) be included in a written consultation exercise to allow all members of the trade, including the trade associations to be consulted. Following the consultation and the review of the licensing policy a report would be included in the Trade Times which would also be circulated to all members of the licensed taxi trade including the trade associations.

The Head of Community Protection endorsed this suggested remedy and agreed to take the recommended action.

Cabinet recommended and Council agreed that:-

1.£250 compensation should be offered to the complainant to cover his time and trouble in bringing the complaint;

2.a representative of the Licensing Section:-

• should consult in writing with the whole of the taxi trade within the Borough on the suggested compromise solution put forward by the trade associations, namely that Vehicle Licences be issued prior to providing a V5 document in the applicants name and if the V5 document was not presented to the Council within a period of 28 days from issue of the Licence then the licence would be automatically suspended until the V5 is produced; and that

3.the Ombudsman should be notified of the action taken in response to the report.

Case C

It was reported to Cabinet on 15 March 2007 that the Ombudsman found the Council guilty of maladministration causing injustice in the way it had handled a car and jet wash and the nuisance caused by them at a local garage adjacent to the complainant’s home.

The two main issues involved were noise and drifting water spray.

The noise was from a car wash and a jet wash. Environmental Health took appropriate remedial action to remedy the problem to the point where they were satisfied that the statutory nuisance had been abated. The Ombudsman praised Environmental Health for their actions, but criticised the Council for the delay in enforcing a planning condition in relation to an automatic timer for air conditioning units (to ensure they were not left on at night).

As for the drifting water spray, complaints began in September 2004 and the Complainant was advised to keep a log of events. The Complainant’s Planning Consultant and Solicitor also wrote to the Council about the spray problem. Discussions took place with the garage owner about a possible solution, however, a proposed scheme involving the installation of Perspex screening was considered to be inadequate and only a full enclosure of the car and jet wash was considered to be an effective remedy. An Abatement Notice was therefore served to this effect. T he owner appealed against the Abatement Notice and the matter was determined by a Judge sitting in the Magistrates’ Court. Following a two day Hearing, the Judge allowed the appeal on the basis that the spray did not constitute a statutory nuisance as he considered it to be an odourless, harmless spray that was not occurring to an extent that caused severe detriment to neighbouring residents. In his conclusion he wrote:-

“I am clear…… that although the spray occurs moderately frequently, its impact is not as detrimental or as severe as (the Complainant) would have me believe.”

In her report the Ombudsman concluded that the Council failed properly to consider:-

1.the Complainant’s objection about spray (which did provide evidence of an existing problem from spray drift but which was too briefly summarised in the Planning Committee report);

2.existing precedents which warned that spray drift from a car wash was a particular problem;

3.Environmental Health Officers’ recommendations about measures to combat spray; and

4.the proximity of residential properties (and particularly the Complainant’s property) to the re-positioned car wash and new jet wash.

The Ombudsman considered that this was maladministration. As a result, the Council failed either to seek an amended application or add a condition to prevent the likely problem of spray drift causing a nuisance to nearby residents. With hindsight these steps should have been taken. An amended application may not have been forthcoming, or a condition may have been successfully appealed, but that is now supposition.

The Ombudsman appeared to accept that the Complainant is more sensitive to the spray drift than most other people. However, she believed the Council’s maladministration had led the Complainant and his partner to unnecessarily suffer a significant loss of amenity and all the upset and adverse effect on his fragile health which that entailed. To remedy this injustice, the Ombudsman recommended that the Council should now:-

a.pay the Complainant £3,500 compensation for the injustice he has suffered so far and his time and trouble in making his complaints to the Council and to the Ombudsman; and

b.either pay the Complainant a further £6,500 compensation for the continuing injustice he will suffer or seek to negotiate with the garage owner for a permanent physical solution to the spray problem to be funded by the Council; and

c.engage the District Valuer to advise whether the Complainant’s property has been devalued by the significant loss of amenity due to the spray which should have been prevented or more effectively tackled by the Council, and pay the Complainant any loss of value identified.

Officers do not agree with the Ombudsman’s conclusion that the Complainant has suffered a significant loss of amenity. With regard to noise, the Complainant has made numerous complaints only one of which was found to be substantiated. This was in respect of a dryer on the car wash. Accordingly an Abatement Notice was served, whereupon the owner ceased the use of the dryer and carried out appropriate work to abate the nuisance. Numerous visits to the premises and to the Complainant’s home have been carried out by Environmental Health Officers over the last 2 years in response to complaints about noise. Negotiations with the owner led to the re-positioning of the refrigeration units and ensuring that air conditioning units were turned off at night. Environmental Health Officers are satisfied that noise emanating from the site is not a statutory nuisance, however, the Complainant has nevertheless continued to complain about noise.

With regard to the criticism about a delay in enforcing a planning condition concerning the installation of an automatic timer for the air conditioning units, Environmental Health Officers were satisfied that management controls were in place to ensure the units were switched off at night and that the units were not the cause of the complaint. This is evidenced by the fact that the Complainant has continued to complain about noise from air conditioning units after the installation of an automatic timer. The complaint about noise has been attributed by Environmental Health Officers to the plant room, however, this noise in itself is not significant and is barely audible against general background noise. Therefore, this is not a statutory nuisance and Officers are unable to satisfy the Complainant with regard to noise.

The problem with spray drift is the more difficult issue. Planning Officers accept that the advice of Environmental Health Officers was not followed and was not made the subject of a planning condition in the original planning approval. Conditions with regard to noise and hours of operation were imposed but not a specific condition in relation to controlling spray drift. It is felt that this was either an oversight on the part of the Planning Officer or following numerous site visits, and discussions with the owners planning and noise consultants, it was agreed that such a condition was not necessary. Subsequent attempts to agree a resolution to the problem with the garage owner have failed as it was felt that only a full enclosure of both the car wash and the jet wash would prevent any over-spray of water. This would be an expensive solution for the garage owner and would affect the viability of the operation. Fully enclosing the jet wash is likely to result in those using the facility getting wet. The owner therefore appealed against the Abatement Notice regarding this potential remedy. The fact that his appeal was successful perhaps demonstrates that the imposition of a planning condition may not have been reasonable. Accordingly, Officers feel that the matter has been put to the test in a court of law and that the Judge’s comments are relevant when considering the Ombudsman’s finding that a significant loss of amenity has occurred.

The Ombudsman was asked to further clarify why she considered a significant loss of amenity has occurred, (given the fact that it is not a statutory nuisance and given the comments made by the Judge). Her response was that:-

“The Council may disagree now that there has been a significant loss of amenity due to spray but Environmental Health clearly did not disagree prior to the Judge’s decision - given the time it devoted to the case, its recorded actions and the Abatement Notice it served.

I would suggest that the Ombudsman’s investigation of the injustice to the Complainant has been much more thorough than any investigation the Judge could undertake in connection with the Hearing. This is not to criticise the Judge, but rather to highlight the limitations of their remit.”