Summary: We will not investigate Mr X’s complaint about how the Council dealt with a hedge next along a stretch of footway in his area, how it responded to his complaint, and about local Councillors not replying to him. There is not enough evidence of Council fault in how regarding the hedge issues, nor sufficient significant personal injustice caused to Mr X by those matters, to warrant an investigation. We do not investigate council complaint handling where we are not investigating the core matter giving rise to the complaint. We also cannot achieve the key complaint outcome Mr X seeks.

The complaint

1. Mr X lives in an area where a couple of streets away a resident has a hedge along a stretch of footway. He complains:
1. the Council has failed to deal with the hedge overhanging half the pavement, which he considers is an accessibility breach;
2. its officers ignored evidence showing non-compliance with national accessibility standards and its own footway width guidelines;
3. officers failed to inspect the site;
4. officers have given vague, delayed, and inconsistent replies in response to his complaint;
5. local Councillors have not responded to his concerns.
2. Mr X says the footway width is so narrow that a pushchair or mobility chair occupies the entire footpath, preventing anyone else from passing safely. He says this negatively affects residents, who are forced to walk on the grass verge to pass, creating safety risks. Mr X says the situation has caused significant stress and frustration to him due to months of correspondence with the Council without resolution.
3. Mr X wants the Council to:
• enforce against the property owner to cut back the hedges;
• inspect the site;
• improve its complaints handling to provide timely, transparent, and accountable responses.

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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. 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; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
8. Councils with a highways authority role have a duty to investigate reports of highway obstructions. It is then for its officers to decide what action to take, if any. There is no duty on councils to use their formal enforcement powers. Use of those powers is at the discretion of councils.
9. In response to Mr X’s complaints about the hedge, the Council sent an officer to assess the matter. Officers served a formal enforcement notice on the hedge’s owner who trimmed the hedge. Mr X wanted the hedge reduced further so there was none overhanging the footway. The Council reinspected and considered the relevant policies. Officers were satisfied the work done by the owner did not result in the hedge causing any further obstruction which warranted more use of their discretionary enforcement powers. Mr X disagreed and complained. The Council determined the hedge did not cause a significant inconvenience to footway users, taking into account its location and level of footfall. Officers confirmed they had not received complaints from wheelchair users or other residents and noted the owner had regularly maintained the hedge.
10. It was for officers to use their professional judgement to determine whether the works were acceptable and in line with relevant policy and approaches. Officers followed the enforcement process, issuing a formal notice which led to works to reduce the hedge. They were satisfied, when taking relevant information into account, that the works done meant they had no grounds to take further enforcement action. That was a decision they were entitled to take. There is not enough evidence of Council fault here to justify us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Even if there had been Council fault here, we would not investigate. The outcome of the Council’s decision not to take more enforcement action is the usable part of the footway next to the hedge is narrower than Mr X would like. He says the footway is only wide enough for a wheelchair or pushchair so anyone meeting them on the stretch next to the hedge must walk on a grass verge. Mr X or any other user of the footway having to walk on a grass verge, or possibly waiting a few moments for the other person to pass, is not a significant personal injustice. Any other injustice to different residents, such as two wheelchair or pushchair users meeting at the hedge, is not Mr X’s own personal injustice. There is insufficient significant injustice caused to him by the matters complained of here to warrant us investigating.
12. We note Mr X also complains about the Council’s complaint process, which he says has caused him stress and frustration. But it was Mr X’s choice to pursue a matter which has minimal impact on him. We also do not investigate councils’ complaint handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
13. Part of Mr X’s complaint to us refers to Councillors not responding to his concerns. From the complaint letters on file, it does not appear he raised this issue with the Council. In any event, a complaint about the conduct of an elected Member or Councillor follows a different process than the one about council employees. If Mr X wishes to pursue this issue about his local Councillors, he may wish to do so through a complaint to the Council’s Monitoring Officer.
14. The key outcome Mr X wants from his complaint is for the Council to take enforcement action against the hedge owner to get it further cut back. We cannot order a council to take such action. That we cannot achieve the core complaint outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

15. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to justify us investigating; and
• there is insufficient significant injustice caused to him by the matters complained of to warrant an investigation; and
• any complaint about the actions or inactions of an elected Councillor would be a separate Member standards complaint which he would need to make to the Council; and
• we cannot achieve the key complaint outcome he seeks.

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Investigator's decision on behalf of the Ombudsman