Summary: We will not investigate this complaint about a verge because there is not enough evidence of fault to justify investigating.

The complaint

1. Mr Y complained the Council has failed to taken enforcement action against a nearby property owner who is repeatedly parking over a recently paved verge.
2. Mr Y says this causes a safety hazard for other users of the verge.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Following complaints from Mr Y, the Council has asked the residents of the property opposite Mr Y’s to not park on a previously grassed verge which has recently been paved. It is continuing to consider the matter and has carried out a site meeting with the residents of the opposite property to discourage parking on the verge as in its professional opinion it felt this action would be sufficient.
8. The Council has agreed that it will continue to consider its actions in response to the further complaints Mr Y has made about the parking and its potential enforcement action. However, to do this it will require its own evidence to be collected, rather than any Mr Y may provide, and it has said it is in the process of gathering this by carrying out monthly checks which it considers to be a sufficient frequency. It says it will then consider what further action it may take.
9. The Council has properly considered its steps in taking enforcement action, such as the needs for evidence to be collected and used its expertise and experience on what it considers appropriate. It has agreed to continue its consideration of the issue and gather evidence for any future enforcement if may wish to take. Consequently, it is unlikely we would find fault in the Council not having taken enforcement action at this time and we will not investigate.
10. Further, section 130 of the Highways Act gives a member of the public the right to serve a notice on the Council requiring it to clear an obstruction. If it fails to do so, the complainant can then ask the magistrates’ court to order it to do so. Therefore, Mr Y has the right apply to the magistrates court if he feels the Council has failed to remove an obstruction on a public right of way.
11. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use her right to go to court about this matter so we will not investigate.

Back to top

Final decision

12. We will not investigate Mr Y ’s complaint because there is not enough evidence of fault to justify investigating.

Back to top

Investigator's decision on behalf of the Ombudsman