Summary: We will not investigate this complaint about the Council’s policy to allow considerate cycling in its parks. There is insufficient evidence of fault and if Mr X and Mr Y believe the Council’s actions are unlawful, this is better considered by a court.

The complaint

1. Mr X and Mr Y complain the Council has refused to amend an unlawful policy that encourages considerate cycling within its parks, despite this being in breach of a Council byelaw.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. 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)
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)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In its complaint responses, the Council has acknowledged the inconsistency between its current policy to encourage considerate cycling within its parks and the byelaw. It said the current policy has been in place for over 20 years and was introduced to encourage inclusive access and active travel. It said the byelaw was outdated and although the Council could consider applying to have it revoked, there were currently no plans to do this, due to the time and resources this process would require.
8. It set out what action it was taking in response to their concerns to encourage considerate cycling in parks and ensure the safety of all park users.
9. We will not investigate this complaint. The Council has acknowledged the inconsistency between its policy and the byelaw but decided not to change its current policy. This is a decision the Council is entitled to reach. As the Council has appropriately considered the matter, we cannot question the outcome.
10. If Mr X and Mr Y consider the Council’s actions are unlawful, they can take the matter to court. We could not require it to change its policy, only a court could do this, if it considered it appropriate. The courts are better placed to determine whether a policy is unlawful and whether it should be revoked.
11. Mr X and Mr Y also complain about poor complaint handling. We will not investigate this. It is not a good use of our resources to consider a council’s complaints handling, where we decide not to investigate the substantive matter.

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Final decision

12. We will not investigate Mr X and Mr Y’s complaint because there is insufficient evidence of fault and if they believe the Council has acted unlawfully, this is better considered by a court.

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Investigator's decision on behalf of the Ombudsman