Summary: Mr X complains a Council officer was rude to him and the Council has failed to repair the drains in his road. The Ombudsman will not investigate this complaint. We are unlikely to add to the Council’s investigation of his concerns about the officer’s behaviour, nor can we achieve his desired outcome. Mr X’s concerns about the drainage in his road are late and I have seen no good reason to investigate now. Also he can ask the courts to decide whether the Council should repair the road surface.

The complaint

1. Mr X complains a council officer was rude when he asked him to remove stakes and string from the highway verge outside his home. He also complains the Council has failed to maintain the drains and gullies in the road close to his property.
2. Mr X wants:
• The Council to sort out the road drains on a nearby road to allow surface water to drain away; and
• The Council to clear the drain outside his neighbour’s property regularly.

He also wants a record of this complaint placed on the officer’s personnel file and for him to receive customer service training.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)

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How I considered this complaint

7. I considered the information provided by Mr X which includes a copy of the Council’s investigation report and responses to his complaint.
8. Mr X commented on the draft version of this decision and I discussed those comments with him.

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What I found

9. Mr X placed wooden stakes and string on the highway verge outside his home to protect an area where he had sown wildflower seeds.
10. A Council officer called at his home and told him the stakes and string were a trip hazard and he must remove them. Mr X says the officer was rude and overbearing, told him he was putting children’s lives at risk and threatened him with enforcement action.
11. Mr X complained to the Council about the officer. At the same time, he complained about a failure to clear the drains/gullies close to his home.
12. The Council says it spoke to the officer who denied being rude or taking any enjoyment from his position. The Council made no finding on this part of Mr X’s complaint. However, it apologised if he felt the officer was anything other than ‘cordial or informative.’
13. There is no third-party evidence to support either Mr X’s claim that the officer was rude, or the officer’s claim that he was not. I am therefore unable to come to a view of this part of the complaint. I note Mr X wants a note placed on the officer’s personnel file about this complaint. The Ombudsman cannot require the Council to do this as we have no jurisdiction in personnel matters.
14. There is no independent supporting evidence for this part of the complaint, and we cannot achieve the outcome Mr X is seeking. Therefore, I do not propose to consider this point further.
15. Turning to Mr X’s concerns about drainage, he says he has been complaining about this matter for some years including meeting in 2018. He has provided a copy of an email from the Council dated April 2018 in which it states its position and view that pipes beneath driveways including Mr X’s were

“ ..to a greater or lesser degree obstructed by silt which will inevitably lead to an accumulation of debris in the ditches. There is nothing to indicate that any of the above is likely to lead to flooding of the highway such as to be a hazard to road users.”

16. He has also provided an email from the Council dated March 2018 which says:

“I confirm that patching of XXXXX where the surface has become raised immediately above the road gulley grating is on the list of possible drainage schemes for the coming year”

17. This shows clearly that Mr X was aware of the drainage problem more than 12 months ago. Mr X says he did not complain to the Ombudsman sooner because he did not know what year the Council’s email of March 2018 referred to. He says his complaint is not late because he did not make a formal complaint until October 2019.
18. However, the law is clear in that a complaint must be made to the Ombudsman within 12 months of the person becoming aware of the matter, not within 12 months of making their first complaint.
19. I have discretion to investigate late complaints and must consider whether there are good reasons to do so.
20. The Council responded to Mr X in March and April 2018. If he was unhappy with the Council’s stated position, he could have come to us in 2018, or early 2019. He did not.
21. Mr X says the Council has not carried out the patching repairs as suggested in its email to him in March 2018.
22. The law gives people the right to apply to the crown court or magistrates’ court (depending on the circumstances) for an order to repair a Council-maintained highway. The procedure is at section 56 of the Highways Act 1980. The court will then hear any evidence either party submits and decide if the road is out of repair. If the court decides the road is out of repair, it can order the Council to repair it.
23. This means the restriction in paragraph 6 applies to this part of Mr X’s complaint. complaint. He can ask the court to consider whether the road surface needs repairing.
24. The law specifically provides this route for dealing with disputes about whether a road needs repairing. Mr X pursued the matter with the Council and the Ombudsman, so I see no reason to consider it unreasonable to expect him to go to court. Also, the court can order the Council to do repairs if it considers that necessary. The Ombudsman does not have this power.
25. I consider Mr X’s complaint to the Council about drainage in early 2020, to be essentially about the same matter he raised in 2018 and the Council’s position does not appear to have changed. I do not consider that more recent correspondence brings the complaint back within the timescales for the Ombudsman to investigate. Also, Mr X can ask the courts to decide if the road requires repair. For these reasons I will not exercise discretion and investigate this late complaint.

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Final decision

26. I will not investigate this complaint. We are unlikely to add to the Council’s investigation of his concerns about the officer’s behaviour, nor can we achieve his desired outcome. I consider Mr X’s complaint about the drainage in his road is made too late and he can ask the court to decide whether the road surface requires repair. For these reasons I will not investigate this part of his complaint.

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Investigator's decision on behalf of the Ombudsman