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Calderdale Metropolitan Borough Council (16 005 182)

Category : Transport and highways > Highway repair and maintenance

Decision : Not upheld

Decision date : 31 Mar 2017

The Ombudsman's final decision:

Summary: Mr and Mrs X complained the Council failed to deal with their concerns about the condition of a road. The Council previously carried out repairs and has agreed to re-inspect the road after they raised further concerns. Mr and Mrs X can seek a remedy in court if they remain unhappy with the Council’s repairs to a road. There is insufficient injustice to Mr and Mrs X to investigate further their concerns about the Council not responding to correspondence.

The complaint

  1. Mr & Mrs X complained the Council has failed to deal with their concerns about the condition of the road surface at a junction at the end of their road and has failed to respond to their correspondence on this issue.

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The Ombudsman’s role and powers

  1. 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:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)
  1. 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

  1. I have considered the information supplied by Mr and Mrs X. I have considered the Council’s response to my enquiries.
  2. I gave the Council and Mr and Mrs X the opportunity to comment on a draft of this decision.

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What I found

  1. In January 2016 Mr and Mrs X contacted the Council to discuss their concerns about the Council’s actions following a road traffic accident which damaged their wall and to raise concerns about the condition of a road near their home.
  2. A Council Officer arranged to meet Mr and Mrs X on 26 January. The Council emailed Mr and Mrs X on 25 January to cancel the appointment. Mr and Mrs X phoned the Council and spoke to the Officer’s secretary. They were unhappy the meeting was cancelled at short notice. They also raised their concerns about the condition of the road.
  3. The Council Officer and Mr and Mrs X exchanged a number of emails regarding the Council’s actions and the condition of the road.
  4. Mr and Mrs X remained unhappy the road was not repaired and complained to the Council. Shortly afterwards the Council carried out a repair. In its complaint response in June 2016 the Council accepted the Officer had not responded to all Mr and Mrs X’s emails and apologised for this. The Council apologised for the time it had taken to repair the road. It advised the road defect had now been repaired and it was satisfied with the quality of the repair.
  5. Mr and Mrs X contacted the Council again in December 2016 and January 2017. They were unhappy the road repair was not carried out to the full width of the road. They also asked for a replacement for the road sign which was removed when the wall was damaged.
  6. Mr and Mrs X did not receive a response and so complained to the Ombudsman.

Findings

  1. The Council advised it repaired the road in June 2016. It inspected the road annually and it was last inspected in August 2016 after the repair. At the inspection it did not identify and defects requiring action.
  2. Mr and Mrs X have raised further concerns about the condition of the road. The Council has agreed to inspect the road within the next month, and to carry out what, if any, repairs it considers necessary.
  3. The Council has a duty under s41 of the Highways Act to maintain the highway. It must ensure the right of way is maintained in a state appropriate for the sort of traffic reasonably expected to use it and it has done that.
  4. If Mr and Mrs X consider the Council has not fulfilled its duty to repair the road they can take action under s56 of the Highways Act 1980. This enables any member of the public to take legal action to enforce the repair of a road if necessary. They can serve a notice on the Council and if the Council fails to respond they can apply for a court order requiring it to repair the road.
  5. In its complaint response the Council apologised for the lack of response to Mr and Mrs X’s emails and that is an appropriate remedy. The Council says it has not received a further formal complaint from Mr and Mrs X and the Council officer Mr and Mrs X contacted in December 2016 and January 2017 is not responsible for highways. In response to my enquiries the Council has now raised a service request to replace the missing road sign. I am satisfied the Council has responded appropriately to the issues raised by Mr and Mrs X. Any injustice to Mr and Mrs X is not significant enough to warrant further investigation of the complaint.

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Final decision

  1. I have ended my investigation and closed the complaint. The Council has agreed to inspect the road and Mr and Mrs X can seek a remedy in the courts if they are unhappy with the Council’s repair of the road. Any injustice to Mr and Mrs X from the failure to respond to correspondence is not significant enough to warrant further investigation of the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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