The Ombudsman's final decision
Summary: Miss B complained about the actions the Council took in respect of noise insulation work to her property. I consider the Council’s proposed resolution is a fair and proportionate way of resolving the complaint.
The complaint
Miss B complained that East Sussex County Council (the Council) had not installed noise reducing measures at her home and had caused damage to her property through ventilation work it has carried out. Miss B also complained the Council did not properly deal with her request for a grant for replacement windows. Miss B has been caused distress by this which has impacted on her health.
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) If we are satisfied with an organisation’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 the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B 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
Noise Insulation Regulations 1975 These regulations allow a highway authority to provide insulation or offer grants to householders living close to a new road. If the property owner accepts a grant for equivalent works, the grant is payable once they have completed and paid for the works to a satisfactory standard.
Regulation 10 states that ‘a claimant who accepts an offer to make a grant in respect of the cost of insulation work shall carry out the work in accordance with the relevant specifications and complete it before the expiration of twelve months from the date of acceptance’. This regulation also says that the carrying out of insulation work and the making of grants shall be dependent upon the claimant complying with paragraphs (4) to (7) of Regulation 8.
Paragraph 7 of Regulation 8 requires a claimant to accept an offer within six months of the date the offer was made or within twelve months of the date of the opening of the relevant road (ie the road causing the noise).
What happened Miss B’s property was eligible for noise insulation due to a new road being constructed outside her property. The Council proposed installing secondary glazing on the main windows at the front of her property, providing two ventilation units, new blinds and a new front door.
The Council sent an initial offer letter to Miss B for secondary insulation including the front door in October 2019. In March 2020 the Council withdrew the inclusion of the front door.
In July 2020 Miss B signed the acceptance letter for the Council to install secondary glazing and disputed the exclusion of the front door from the offer. In September 2020 the issue of the door was resolved, and Miss B said she wanted to install her own windows with a grant.
The Council sent a grant offer letter saying she was entitled to the maximum grant for the eligible windows, the grant would be payable on completion of satisfactory work and the work had to be completed within six months. Miss B’s neighbour received a similar letter.
In November 2020 Miss B agreed to the secondary glazing option because she could not afford to fund the replacement windows herself and then wait for the grant to be paid back to her. She also raised some queries about how the secondary glazing would fit in the limited space available. In January 2021 the Council installed the ventilation units in the front living room and bedroom.
In February 2021 Miss B raised further queries about the secondary glazing and in March 2021 she complained about the installation of one of the ventilation units in the bedroom (she said it had been positioned incorrectly and the installer said it could be moved). In response to the secondary glazing queries the Council said it had an alternative design which would resolve the space issue. Miss B remained unhappy and made a formal complaint about the ventilation unit.
The Council responded at the end of March 2021. It explained the guidelines for where the unit should be installed and said it was not possible to move it to a significantly different position and still meet the guidelines. It also said that moving the unit marginally would create more work both inside and outside which would not be covered by the insulation scheme and was not necessary.
Miss B escalated her complaint immediately. She said the ventilation installers said the unit could be lowered or moved to an alternative location and that the unit was constantly open. She also disputed the design for the secondary glazing.
The Council replied in May 2021. It said the installer denied saying they could either lower the unit or move it to an alternative location. They agreed to see if a smaller unit was available but there is not. It referred her to the instruction manual for how to close the vent. Regarding the secondary glazing, it explained that even if it was installed with a smaller airgap, the result would still be an improvement over the current glazing and would achieve a greater improvement than simply replacing the windows.
Miss B telephoned the Council on 10 May 2021 and the Council replied to her further queries in July 2021. It said its final view was to install secondary glazing in accordance with the requirements of the regulations at no cost to Miss B. It repeated its view that secondary glazing generally provides more noise reduction than simply replacing existing windows. In respect of the ventilation, it said that there was nothing wrong with the installation of the ventilation unit and any workmanship issues would be picked up by subsequent inspections after all the insulation works (in the area) had been completed. But it was unlikely that the unit would be moved.
The Council and its contractor carried out a home visit to inspect the works in October 2021. Following this visit the Council sent a final response to Miss B in November 2021. It said the secondary glazing offer for the bedroom bay window was fine and the offer still stood. It recognised there were some space issues in the living room but had come up with an alternative plan to account for these. It also recognised there may be issues with the window handles but these could be addressed at the installation stage, and it had already received advice that this was possible. It agreed that neither ventilation unit had been fitted correctly. It offered to repair and test both units but confirmed the upstairs unit could not be moved.
Miss B complained again. She said the Council had not explained why it would not replace the window with a new unit as the secondary glazing is impractical and the requisite gap cannot be achieved. She also said the Council had not provided evidence why the ventilation unit upstairs could not be lowered.
The Council sent a final response in November 2021 confirming that its offer in respect of the secondary glazing and the ventilation units still stood.
Mis B continued to complain saying that she had been treated differently to her neighbour who had been offered a grant for replacement windows. Miss B also said she had only been given six months to complete the works when the regulations allowed for up to 12 months and she had been pressured by the Contractor to agree to the grant offer in one day.
Miss B complained to us in January 2022. She also accepted the Council’s offer of a visit from the Council to repair the ventilation units and again asked for technical drawings to show how the windows would work in practice.
The Council inspected the ventilation units in February 2022.
In May 2022 the Council sent a proposal to Miss B to resolve the situation. It gave her two options: Contractors to repair the ventilation units and install secondary glazing; or Contractors to remove ventilation units and give Miss B a grant (of the sum offered in September 2020) to arrange her own works.
In June 2022 Miss B said she was partially satisfied but wanted a higher grant to recognise the increase in costs since the original offer was made. She wanted details of the terms and conditions before signing, money to compensate for the damage to her walls and redecoration and a goodwill payment for her time and trouble and distress.
In response to my enquiries the Council made a revised offer to Miss B: rather than pay the grant which requires Miss B to pay the upfront costs, it would now offer an ex-gratia payment based on a reasonable quote sourced by Miss B and approved by the BinJ in advance of the works taking place.
contractors would remove the ventilation units and make good as far as reasonably possible.
pay Miss B £500 for decoration to recognise the length of time this has been ongoing.
It also said it did not discover the faulty installation of the ventilation units until February 2022. However, this contradicts the complaint response sent to Miss B in November 2021 which acknowledges faulty installation In response to comments raised by Miss B on an earlier draft decision, the Council has explained that while regulation 10 normally entitles a person 12 months to complete the grant works, this is also dependent on the person accepting the insulation or grant offer within six months of the offer letter or 12 months of the road opening to the public. The latter deadline was not applicable given the time that had elapsed since the road was opened.
Miss B had not responded to the initial offer letter in six months and so had not complied with paragraph 7 of regulation 8, so the time limit in regulation 10 did not apply. By the time she requested a grant, 11 months had elapsed. Since then, Miss B has reverted to the installation option and then back again to the grant with payment upfront. The Council considered it had been flexible in its interpretation of the regulations up to then and given the time that had elapsed, it felt six months was a reasonable period. It said that if a resident had embarked on their own installation and needed to extend the time period the Council would have granted this.
Analysis Grant for the work I have not found fault with the way the Council dealt with the offer of a grant for Miss B to do the work herself. The Council offered Miss B the option of a grant for replacement windows or the installation of secondary glazing. After initially agreeing to the secondary glazing, Miss B said she preferred the grant option. The Council sent an offer letter setting out the amount and terms of the grant, on the same terms as the offer to her neighbour. Miss B declined as she could not afford to pay for the work upfront. This was unfortunate but was not due to fault by the Council.
The Council has explained why the time period of six months to complete the work was offered and why it considers this was in accordance with the legislation. Given the time period that had elapsed since the initial offer letter was sent in October 2019, and the fact Miss B did not raise a complaint about the six month period until Nov 2021, a year after she accepted the offer of installation, I have not found fault with the Council’s actions.
Secondary glazing I understand Miss B has been reluctant to accept this offer of work because she is unsure how the handles and blinds will work and why a smaller gap is acceptable.
I am satisfied that the Council explained in November 2020 and May 2021 that secondary glazing provided a higher level of noise reduction than replacement windows. I am also satisfied the Council gave Miss B reassurance that the issue of the handles could be resolved during installation, that it had received assurances from the installer that this would be possible and would meet with the requirements of the legislation. It had inspected the windows on several occasions and had made alterations to the plans to accommodate the limited space available. This shows it was willing to make changes to suit Miss B’s property.
I recognise that the Council had not provided exact drawings showing how the issue would be resolved, but it was not required to do so, and it was open to Miss B to refuse the offer if she was unsure.
Ventilation units Miss B initially complained about the location of the ventilation units in March 2021. The Council responded promptly to this complaint explaining why they could not be moved. It sent further replies over the next two months, but it stuck to its view that the units could not be moved. I consider that it could have visited Miss B’s property and inspected the ventilation units at an earlier point, given her continued dissatisfaction with their position and operation.
Once it visited in October 2021 it acknowledged that the installation was faulty and caused some damage to Miss B’s property. However, it made a prompt and reasonable offer to repair the units and make good the damage, which Miss B accepted in January 2022.
Resolution I welcome the Council’s attempts since April 2022 to resolve Miss B’s complaint and end the impasse over the windows. I consider the most recent offer is a reasonable way of resolving the complaint. It allows Miss B to carry out the window works herself without having to pay upfront, it recognises the increase in costs over the past two years and offers a payment towards decoration costs and her time and trouble.
Final decision
I have completed my investigation as I consider the Council’s offer is a fair and proportionate way of resolving the complaint.
Investigator's decision on behalf of the Ombudsman