Cumbria County Council (18 009 471)

Category : Transport and highways > Highway repair and maintenance

Decision : Not upheld

Decision date : 30 Jan 2019

The Ombudsman's final decision:

Summary: Mrs F complains the Council failed to erect road signs warning of the danger of using a ford river crossing and about the way the Council dealt with her complaint. The Ombudsman has not found fault.

The complaint

  1. Mrs F complains the Council failed to erect road signs warning of the danger of using a ford river crossing, despite being aware of numerous previous incidents at the site. She also complained about the way the Council dealt with her complaint.
  2. Mrs F says she assumed the ford was safe to use but her car was written off.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. If we are satisfied with a council’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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How I considered this complaint

  1. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries, the Road Traffic Regulation Act 1984 (“the Act”) and the Traffic Signs Regulations and General Directions 2016 (“the Regulations”).
  2. I gave Mrs F and the Council an opportunity to comment on my draft decision.

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What I found

  1. The Act gives councils the power to place traffic signs on the highway, but there is no legal requirement to provide road signs. It is therefore for the Council to determine whether a sign is necessary. Generally, in reaching this decision councils will consider whether: there is a substantial problem which requires improvement, there is a current road safety problem, it is physically possible to place the sign in the correct location, and the sign is allowed under the Regulations. Where traffic signs are installed they must comply with the Regulations and the Government’s Traffic Signs Manual.
  2. The Highways Act 1980 places a duty on highways authorities to maintain certain highways. Highways authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.

What happened

  1. Mrs F was driving to a family member's property in April 2018. She says road signs and her satellite navigation device directed her to cross a ford river crossing. She saw no signs warning against use of the ford or providing advice on how to cross and there was no room to turn around; she therefore proceeded to cross.
  2. As she drove forward, Mrs F says she followed the apparent and natural route straight across, but the actual route was a narrow concrete surface, which curved to the right under the water. Her car therefore went off the ledge into the river. Despite attempts to remove her vehicle, her insurance company later wrote it off.
  3. Mrs F spoke to a local resident, Mr J, who lived near the ford. Mr J said he had been in correspondence with the Council about the ford. He had told the Council in February 2018 there had been seven similar incidents since December 2017, involving cars and large delivery vans. The mountain rescue team had been called out three times and had noted there was a potential risk to life. Mr J said signs indicating a ford installed on the main road had not reduced the problem. He told the Council signs warning the road was not suitable for heavy vehicles and to not follow satnavs were needed.
  4. The Council had written to Mr J on 9 March 2018 saying it would “arrange for suitable signage, warning of the width of the ford and the unsuitability for larger vehicles/do not follow satnav etc to be placed at suitable locations”. The officer had noted that extending the concrete surface would be difficult, due to Environment Agency rules. Mr J had told the Council of two further incidents in March 2018 and had asked officers to visit the site.
  5. Mrs F claimed more than £2,000 from the Council for her insurance excess, future increases in insurance premiums, stress, inconvenience and property damage. The Council's insurers refused Mrs F's claim. They said the road had been inspected in September 2017 and there were no concerns that the ford was dangerous or defective. They also said there were no records of any similar accidents; the Council’s correspondence with Mr J had been in relation to the positioning of signs for large vehicles.
  6. Mrs F complained. She said the Council had been negligent as it had been aware of previous incidents but had taken no action to protect road users.
  7. The Council’s response said the incidents reported were not highway defects and the Council had received no adverse reports on the condition of the road or ford. It also said the correspondence with Mr J was “in connection with erecting signs warning of the unsuitability of the road for use by larger vehicles due to the narrowness of the land and lack of verge”, and was not an acknowledgment of a problem for cars.
  8. Mrs F considered the Council was being evasive, so she continue to correspond. The Council sent a further response on 17 August 2018. This said:
    • the Council was satisfied it had complied with the Traffic Signs Manual
    • the ford was not an unexpected hazard
    • the Council was not required to provide a turning area
    • officers were familiar with the location, and
    • additional signage was being fabricated and would be installed as soon as possible.
  9. In reply Mrs F said she would refer her complaint to the Ombudsman.
  10. In response to our enquiries the Council said Mr J had reported incidents, but it had had no formal reports of these incidents. It had installed signage advising larger vehicles to not follow satnav advice, and showing a diversion, on the junctions approaching the ford on 10 October 2018. It had not replied to Mrs F’s final email as she had complained to the Ombudsman.

My findings

  1. When Mrs F complained to the Ombudsman, our initial view was that we would not investigate. This was because the Ombudsman cannot investigate claims about damage to property. These are legal claims of negligence which insurers deal with. It is reasonable for Mrs F to use her right of remedy in the courts to challenge the Council’s rejection of her insurance claim. This is because the Ombudsman cannot say whether the Council’s maintenance of the highway resulted in the damage to Mrs F’s vehicle. We cannot say whether the Council is liable to pay damages. Only the courts can make those decisions.
  2. In response, Mrs F said her complaint was not only about her losses, but about how the Council had responded to reports of numerous incidents at the site since December 2017. The Ombudsman may investigate a matter where it relates to an issue of significant public interest. We therefore decided to investigate.
  3. The Council had inspected the ford in September 2017 and found it was not defective. I have seen no evidence of fault in the way it made that decision.
  4. In response to Mr J’s reports of incidents at the ford, in March 2018 the Council agreed to install signage. They were not installed until October 2018. There are no statutory timescales and I have seen no policy giving deadlines for installing signs. I therefore cannot find there was delay by the Council. It is unfortunate the signs were not in place when Mrs F used the road, but it is possible she may not have followed them as they are intended for larger vehicles.
  5. Although any traffic signs must comply with the Regulations and Manual, there is no legal duty to install traffic signs. It is therefore for officers to determine what signage is necessary, based on the information they have.
  6. The Council decided warning signs were needed for vans and lorries, not cars. This is a decision it was entitled to make. The Ombudsman cannot intervene in a Council’s decision without evidence of fault in the way it was made. It was aware of the problem, familiar with the site, and discussed the signage with a local resident. There is no evidence of fault and I therefore cannot criticise the decision.
  7. Mrs F says the Council handled her complaint badly. After the insurers rejected her claim, Mrs F complained to the Council in June 2018. Correspondence continued until September 2018 as Mrs F considered her questions were not being answered. I have seen the correspondence. Whilst I appreciate Mrs F was frustrated by the Council’s responses, it was not fault.

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Final decision

  1. There was no fault in the way the Council decided a ford was not defective, or in the way it considered and installed traffic signs. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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