Summary: Mrs X complains about the condition of the lighting and drainage on the footpath at the site where she lives and the Council’s decision not to take enforcement action against the site owner. From the evidence seen, the Ombudsman does not find fault in how the Council investigated and considered whether to take enforcement action.

The complaint

1. The complainant, whom I refer to as Mrs X, complains about the condition of the lighting and the drainage on the footpath outside of her property. Mrs X says the Council is not enforcing the licence conditions against the site owner. She finds it difficult to use the footpath when it rains as the path floods and in darkness due to the poor lighting.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’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)

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How I considered this complaint

4. I considered the complaint made by Mrs X and the information provided by the Council in response to my enquiries. I discussed the complaint with Mrs X over the telephone. I sent a draft of this decision to Mrs X and the Council and considered their comments.

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What I found

5. Mrs X lives on a site for retired people. Mrs X and several other residents raised concerns about issues with the site including the standard of lighting and the condition of the pathways in 2016.
6. The Council served a compliance notice on the site owner in 2016. This included complying with the conditions to maintain the footpaths and pavements and adequately light footpaths, roads and pavements between dusk and dawn.
7. The site owners appealed to the First Tier Tribunal. The tribunal quashed the part of the compliance notice relating to the lighting at the site.
8. Since this time Mrs X made further reports to the Council about the condition of the lighting in September 2018. The Council carried out a site visit and said it carried out repairs to the lighting later in September 2018.
9. Mrs X again reported the condition of the lighting to the Council who arranged for a site visit in February 2019, during darkness. Notes from the site visit show no concerns about the quality of the lighting.
10. Mrs X also reported the condition of the footpath to the Council. She supplied photos to the Council in April 2019 showing the condition of the footpath. On 12 April 2019 Mrs X complained to the Council. She said the Council had not taken action to address her concerns about the lighting and footpath.
11. The Council responded to Mrs X’s complaint on 14 May 2019. It considered Mrs X’s evidence however, visited the site and decided the lighting met the standards in the licence conditions.
12. In relation to the drainage of the footpath, the Council said it investigated this and felt there was adequate drainage to the extent required by the site licence conditions. The Council said it had contacted the site owner to suggest recommendations to improve the drainage of the footpath to stop any future deterioration.
13. On 17 May 2019 Mrs X escalated her complaint to stage two. The Council provided its stage two response on 3 June 2019. It said the site complied with the site licence conditions and if the Council believes the site is compliant it cannot take enforcement action.

Analysis

14. The Council has discretion to decide whether to enforce against a breach of licencing conditions. There is no absolute duty on councils to commence enforcement action.
15. Mrs X’s points of dispute are the condition of the footpath and the standard of the lighting on the site. The Council has investigated these issues and visited the site. In response to my enquiries the Council acknowledged there was some surface water on the footpath when it rained but said this did not affect the material use of the whole pavement width. In terms of the lighting the Council inspected this on 6 February 2019 between 6:10pm and 6:43pm and felt the lighting was adequate.
16. The Council decided a breach of the site licencing conditions had not taken place and attempting to take enforcement action would be unsuccessful. The Council has shown it responded to Mrs X’s reports by visiting the site to assess the issues. While I appreciate Mrs X disagrees with the Council’s views about the condition of the site, this approach is not fault.
17. The role of the Ombudsman is to consider procedural fault. We do not question the professional judgement of council officers, unless they are flawed by procedural fault. This means I cannot replace the Council’s views about the condition of the footpath and lighting with my own views. Provided the Council made its decision in a way which is procedurally sound, I cannot criticise the judgment it eventually reached.
18. The Council’s complaints process says the Council will provide a stage one response within 10 working days of receiving a complaint. In addition, the stage one complaint response letter sent to Mrs X told her she would receive a stage two response within 10 working days of her request to escalate her complaint. There was a delay in providing the stage one and stage two responses however, the responses did address the matters Mrs X complained about and the delay was minimal. I do not consider this amounted to fault.

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Final decision

19. I have completed my investigation found no fault in how the Council investigated and considered whether to take enforcement action against the site owners.

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Investigator's decision on behalf of the Ombudsman