Summary: Mr X complained about the condition of a local road that affected his home. We found fault in how the Council dealt with Mr X’s concerns about the road. The Council agreed to apologise to Mr X and pay him £300 in recognition of his distress and time and trouble caused by its delay, poor communication and complaint handling.

The complaint

1. Mr X complained about the Council’s handling of problems on a road near his home (‘the Road’), because it failed to:

• clean the Road and repaint double yellow lines needed to enforce parking restrictions;
• clear fly tipped rubbish from the Road, including the pavement; and
• remove abandoned vehicles from the Road.

2. Mr X said he and other residents could not use the pavement, the Road was unsightly, and rats were present. The condition of the Road badly affected his and other nearby homes and local property prices.
3. Mr X wanted the Council to remove the abandoned vehicles and rubbish, clean and maintain the Road, and enforce the parking restrictions.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. Where we find fault, we must also consider whether that 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 significant injustice, or that could cause injustice to others in the future, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. 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)
8. 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)

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What I have and have not investigated

9. Mr X provided information showing he had reported concerns about the Road to the Council since about 2015. Following contact with his local councillors in Autumn 2022, Mr X formally complained to the Council about the Road in early 2023. Mr X also contacted us, but we referred him to the Council to complete its complaint procedure. Later, Mr X returned to us saying the Council had still not responded to his complaint.
10. Any complaint about the Road before 2022 would be a late complaint (see paragraph 6 of this statement). I saw no good reason to consider any concerns Mr X may have had about the Road before early 2022. I therefore investigated Mr X’s complaint back to 2022.
11. Mr X has legal rights to apply to the courts about the Council not cleaning the Road and keeping it clear of litter and refuse. However, Mr X raised many linked concerns about the Road and how the Council handled them. I therefore found it would be unreasonable to expect Mr X to apply to the courts in the specific circumstances of this complaint. So, I exercised my discretion and investigated all the issues raised in Mr X’s complaint (see paragraph 7).

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How I considered this complaint

12. I:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Road cleaning

Background

13. Mr X’s home, and other homes, are along one side of the Road but access to those homes is not from the Road. The other side of the Road gives access to mainly industrial land and buildings with lorry traffic. The Council says the industrial land accessed from the Road has no on-site wheel washing facilities for lorries.
14. Councils have legal duties to keep public roads clean and clear of litter and refuse “so far as is practicable”. The Government’s Code of Practice on Litter and Refuse provides practical guidance about carrying out the legal duties. The law also gives people the right to complain to the magistrates’ court if their council does not meet its duties to keep roads clean and or clear of litter and refuse. People must give their council at least five days written notice of the problem and of their intention to apply to the court. The court may order the council to clean and or clear the litter and refuse from the road. Non-compliance with the court order, without reasonable excuse, is a criminal offence.
15. In practice, cleaning usually depends on the type of road (for example, rural, city centre, or residential) and how much the road is used. The Council’s website says it aims to sweep all residential roads at least once a week. However, during autumn, sweeping may be fortnightly as the Council’s focus is on roads affected by leaf fall.
16. The Council classifies the Road as ‘residential’ and said its mobile sweeping team swept it on Mondays (excluding Bank Holidays). Its task force team visited twice a week and would remove any fly tipping. A mechanical sweeper also visited four times a week, Tuesday to Friday. The Council said it held records of the weekly Monday visits dating back to 28 March 2022 but excluding May 2022. The records showed five missed sweeps. However, the Council said all task force and mechanical sweeping visits took place from January 2022 through to September 2023. It also held records showing occasional fly tip removals taking place within 48 hours of a report. The Road was also deep cleaned in Autumn 2022, which included jet washing pavements and clearing the drains. The pavements were also jet washed in Spring 2023.

Consideration

17. The evidence showed the Council had a sweeping programme for the Road, which included different methods of cleaning (see paragraph 16). The Council also held records of the Monday sweeping carried out on the Road, which largely showed compliance with a weekly sweep. And photographs provided evidence of a deep clean in Autumn 2022 and pavement jet washing in Spring 2023. I recognised Mr X did not consider the Council kept the Road clean. But the Council has said no wheel washing facilities exist on the adjoining industrial land. It is therefore likely that, once swept, continuing lorry movements will, depending on the weather, lead to further deposits of dirt, dust and mud being on the Road. Overall, I did not find fault by the Council in its cleaning of the Road. If in the future Mr X considers the Council is not cleaning the Road, he may use his legal rights to apply to the courts for an appropriate order (see paragraphs 7, 11 and 14).

Fly tipping

Background

18. Paragraph 14 of this statement refers to the Council’s legal duty to keep public roads clear of litter and refuse “so far as is practicable”. Councils also have powers and duties under highway legislation to deal with obstructions and other unlawful interference with public roads, including their pavements.
19. In early May 2022, the Council said it removed fly tipping from the Road, but its investigations led it to find that most of the materials were not ‘fly tipped’. Rather, it appeared the materials were the property of an owner occupier of land accessed from the Road. Its fly tipping team therefore referred the case to their highway colleagues to consider using highways legislation to deal with the remaining materials.
20. A few days after the May 2022 clearance, Mr X reported fly tipping along the Road. Mr X made further reports in early June and early July 2022. The Council said it recognised there was a problem with materials placed along the Road. It was therefore considering longer term solutions, in partnership with other bodies, to prevent the problem. And, between early May and early July 2022, the Council said it visited the Road five times to remove any fly tipped materials (and inspect possibly abandoned vehicles).
21. In Spring 2023, the Council, in partnership with others including the police, issued various notices to owners and occupiers of land accessed from the Road. One notice referred to highways legislation and sought removal of materials from the Road, including the pavement. The Council said the relevant owners and occupiers complied with the notices and removed the materials.

Consideration

22. The Council said its investigations led to it finding materials on the Road were the property of neighbouring owner occupiers. Its fly tipping team therefore took the view the materials were ‘owned’ and not ‘fly tipped’. Regardless of ownership, to place, deposit or store items on public roads and pavements usually needs specific legal authority. So, the Council acted correctly in then considering action under highways legislation.
23. However, after moving some fly tipping in Spring 2022 and other occasions (see paragraphs 16 and 19), it took the Council a year to deal with the remaining materials. I saw no evidence to show why the Council needed a year to secure removal of the materials.
24. I also saw no evidence the Council contacted Mr X, despite his complaint in early 2023, to tell him of its intended partnership response to deal with the Road. I therefore considered the Council fell below acceptable administrative standards in communicating with Mr X about the Road. But photographs provided evidence the Road was cleared in Spring 2023. So, rather than a failure to act, between Spring 2022 and Spring 2023 the Council avoidably delayed in dealing with the materials on the Road, including its pavement. The Council’s poor communication with Mr X and avoidable delay was fault. And the lack of action, and information, would likely have been distressing and frustrating for Mr X. I therefore found fault causing injustice here.
25. Unfortunately, it seemed materials were again placed on the Road after Spring 2023. Mr X says the Road is ‘worse than ever’. The Council says its last inspection showed conditions much improved although ‘scrap metal’ was present, and trailers. However, as the Road was cleared in Spring 2023, I found later events beyond the scope of Mr X’s early 2023 Council complaint and therefore this investigation. Mr X may make a further complaint to the Council about the Road and or use his legal rights (see paragraph 14) if he finds its current condition unacceptable. And the Council may wish to consider whether it could take further steps, alone or in partnership, to address any continuing use of the Road for ‘storage’ by neighbouring owner occupiers. Such steps might include issuing further notices under highways legislation.

Parking enforcement

Background

26. London councils have powers to make traffic management orders (TMOs) to control use of public roads. Road signs and markings show road users what TMO controls exist on a road. A TMO prohibiting waiting needs a ‘no waiting’ sign and double yellow lines along the side of the road. People may challenge parking enforcement action if, for example, the necessary signs and road markings are not in place and or visible.
27. A TMO prohibits parking along one side of the Road. The other side of the Road provides free on street parking except where vehicles need to turn. Bollards on the pavements on both sides of the Road aim to prevent unauthorised pavement parking. The Council recognised the condition of the Road had affected parking enforcement.
28. The Council said its road surveys showed the condition of its roads so it could plan resurfacing works. It also regularly inspected roads for safety defects. In 2022, it identified a need to resurface part of the Road and it completed those works in Autumn 2022. The Council said the rest of the Road did not need resurfacing or other work. On completing the partial resurfacing works, the Council repainted all but 20 metres of the double yellow lines needed for the TMO. The remaining line painting took place in Spring 2023, after removal of materials from the Road (see paragraph 21).
29. The Council said it made 139 enforcement visits to the Road between January 2022 and September 2023, including 109 between January 2022 and Spring 2023. And it took enforcement action if it found vehicles not complying with the Road’s TMO. People could report unauthorised parking to its contact centre and receive a reference number, which number they could use to follow up their report. An enforcement visit would take place as soon as possible following a report. However, the Road was in an area of ‘higher perceived risk’ and so visits needed two enforcement officers and a driver.

Consideration

30. The evidence showed the Council was carrying out parking enforcement along the Road despite its partial disrepair in 2022. However, I had no good grounds or reason to question the Council’s decision to complete the partial resurfacing before repainting the double yellow lines. And the evidence showed most of the line repainting took place quickly after the resurfacing work in 2022. I found no fault here.
31. Photographs showed on street parking was mainly along the side of the Road not covered by the TMO. The delayed repainting of 20 metres of double yellow lines, also affected that side of the Road. The double yellow lines on that side of the Road restricted parking at turning areas. The Council said the deposited materials delayed the repainting. The photographs did not suggest the deposit of materials on the turning areas. But the materials might have impeded the line painting equipment in accessing the turning areas. If the deposited materials were on a turning area, their presence would have prevented any possible unauthorised parking in that turning area. However, overall, the evidence did not suggest the alleged unauthorised parking of concern to Mr X was taking place on those parts of the Road with TMO parking restrictions. Rather, vehicles were parked where on street parking was available.
32. The photographs did show pavement parking despite the presence of bollards. The surface condition of the Road and any lack of clarity about road markings would not have prevented the Council from taking enforcement action against unauthorised pavement parking. And, overall, I found no fault here by the Council. I also saw no evidence to show any problems with parking enforcement were likely to have caused Mr X significant personal injustice.

Abandoned vehicles

Background

33. Councils have a duty to remove vehicles they consider are abandoned without lawful authority on public roads. The law sets out how councils may remove and dispose of vehicles. The law also provides for councils to recover their costs of removing, storing and disposing of vehicles.
34. The Council’s website lists characteristics generally common to abandoned vehicles. The list includes vehicles: containing waste; which are significantly damaged, run down or appear unroadworthy; and stationary for some time. The Council says its inspectors consider the general characteristics when deciding if a vehicle is abandoned.
35. The Council said Mr X reported abandoned vehicles in March 2022. It then made several visits to the Road up to 1 April 2022 and five further visits between May and July 2022. It used a flow chart and 23-point check list to decide if a vehicle was abandoned. It identified no vehicles on the Road as abandoned. The Council considered this was because, in 2021, in partnership with the police, it had removed 22 vehicles from the Road. During 2021 it had also removed a large fly tip and inspected a caravan present on the Road but found it was not causing an obstruction.

Consideration

36. I recognised Mr X considered there were abandoned vehicles on the Road. However, it was for the Council to decide whether a vehicle was abandoned and so remove it. Here, the Council acted correctly in visiting the Road and inspecting the vehicles to assess whether any were abandoned. I therefore had no good grounds to question its resulting decision that no abandoned vehicles were present (see paragraph 4).

Complaint handling

Background

37. The Council has a two stage complaints procedure. At stage one, it acknowledges complaints within five working days and provides a response within 15 working days. If dissatisfied with the response, people may ask for a more senior Council manager to review the complaint. The stage two review response should be sent within 20 working days.
38. Mr X complained to the Council in early 2023. Mr X said the Council was ignoring fly tipping and abandoned vehicles and not cleaning the Road, which meant it could not enforce parking restrictions. The Council acknowledged the complaint. It was then working on its long-term solutions for issues affecting the Road (see paragraph 20). The Council did not, within 15 working days, respond to the complaint or tell Mr X its plans for dealing with issues affecting the Road. Mr X then came to us, and we asked the Council to put his complaint through its complaints procedure. We told Mr X we usually allowed councils 12 weeks to do this. Later, and about four months after Mr X had complained to the Council, it wrote to Mr X.
39. The Council’s letter to Mr X had no date and did not refer to its complaints procedure. The letter appears to have been sent shortly after the Spring 2023 clearance, cleaning, and final line repainting of the Road. The letter told Mr X it had been working with other bodies, including the police, and using mobile CCTV cameras to monitor fly tipping along the Road. It had also contacted the owners and occupiers of land accessed from the Road and served legal notices for the removal of materials from the Road. The materials had been removed and it had jet washed the Road and repainted the double yellow lines. The letter also said the Council would continue to patrol the area and engage with relevant owners and occupiers of land accessed from the Road.

Consideration

40. Mr X said he did not receive the Council’s undated letter. When he returned to the Ombudsman, he said more than 12 weeks had passed without any response to his complaint.
41. Overall, the evidence showed fault in the Council’s complaints handling. There was no stage one complaint response within 15 working days. And, if the undated letter was the Council’s stage one response, it failed to make this clear. The letter also did not tell Mr X he could ask for a stage two review of his complaint if dissatisfied with the response. The failure to clearly respond to his complaint will likely have caused Mr X frustration and put him to avoidable time and trouble in bringing a complaint to the Ombudsman. I therefore found fault causing injustice here.

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Agreed action

42. I found fault causing injustice (see paragraphs 24 and 41) and the Council agreed:

• (within 14 working days of this decision statement) to send Mr X a written apology; and
• (within 28 working days of this decision statement) to pay Mr X £300.

The apology and symbolic payment are to recognise Mr X’s avoidable distress, frustration, and time and trouble caused by the Council’s poor communication, avoidable delay, and failure to process his complaint. The apology should take account of the Ombudsman’s ‘apology checklist’ available at: Guidance on remedies - Local Government and Social Care Ombudsman. The Council also agreed to provide us with evidence of its compliance with the actions set out in this paragraph 42.

43. The Council recently agreed with the Ombudsman to review how it handled highway queries and to review its complaints procedure to ensure it responded in line with its published policy. I therefore made no recommendations for service improvements here.

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Final decision

44. I completed my investigation, finding fault causing injustice in the Council’s handling of Mr X’s concerns and complaint about the Road, when it agreed the recommendations at paragraph 42.

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Investigator's decision on behalf of the Ombudsman