Summary: The Ombudsman will not investigate Ms X’s complaint that the Council has failed to sweep a lane where she lives. There is not enough evidence of fault by the Council causing injustice to Ms X. And it would be reasonable for her to act through the courts if she wishes to enforce the Council’s highways duties.

The complaint

1. The complainant, whom I shall call Ms X, says the Council has failed sweep a lane to remove debris such as mud and stone. She says it is dangerous to cycle on and she has skidded on it a couple of times and on one occasion fell off her bicycle.
2. Ms X also complains about the Council’s failure to respond to her complaint in a timely manner.

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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. 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)
5. 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 the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A (6), as a (amended)

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How I considered this complaint

6. I have considered the information provided by Ms X and the Council’s responses to her complaints. I have also considered the relevant law.
7. Ms X had the opportunity to comment on the draft version of this decision.

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What I found

8. In April Ms X asked the Council to sweep a lane where she lives. Having heard nothing, she contacted the Council in June and says it told her it would action her request.
9. In August the Council sent her an email saying that it was working through a backlog of requests and was using a new system. It asked her to resubmit her request if it was still outstanding.
10. Ms X complained saying there was still a build- up of mud and debris on the road which was dangerous for cyclists. She demanded the lane be swept immediately and that she should not have to resubmit her request because the Council had taken so long to deal with it.
11. The Council apologised to Ms X. It confirmed the lane had been swept.
12. Ms X complained again in October saying the lane had still not been swept. The Council confirmed it was swept in August. It also advised the lane is a rural one and is not an arterial route. It is not on a regular sweeping schedule. However, it is swept in November after the autumn leaf fall.

Assessment

13. The Council is legally obliged to maintain the highway in good repair, and to remove any soil or other material which causes an obstruction. The law provides for a magistrate’s court to consider a complaint from any person if the Council fails to meet its duties.
14. It would be reasonable to expect Ms X to apply to have the matter considered in court if she remains unhappy. The law allows the Council to put forward a defence against claims of disrepair and it is not open to the Ombudsman to remove that right.
15. Ms X is concerned not only about what happened to her but what might happen to other people because of the debris on the road. The Ombudsman cannot consider injustice to people which might not happen.
16. I understand Ms X is unhappy with the way the Council dealt with her concerns. The Council has apologised for this. While we would expect the Council to respond according to its complaints policy, I do not propose to investigate this issue further. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

17. I will not investigate this complaint. There is not enough evidence of fault by the Council causing injustice to Ms X. And it would be reasonable for her to act through the courts if she wishes to enforce the Council’s highways duties.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman