Summary: The Ombudsman will not investigate this complaint about highway repair issues. Many issues are either outside his jurisdiction or the complainant has other ways to seek redress. There is no evidence of other fault by the Council.

The complaint

1. The complainant, who I refer to here as Mr B, has complained about issues relating to road maintenance carried out by the Council over the past three years. These issues include:
• the standard of pothole repairs and resurfacing work;
• the Council’s methods of working which he says lead to a waste of council tax;
• the use of money provided by central government for repairs;
• the response to requests under the Freedom of Information Act 2000;
• damage to vehicles; and
• the Council treating Mr B as a ‘persistent and unreasonable’ complainant.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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)
5. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
6. 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’.
7. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained;
• the injustice is not significant enough to justify our involvement; or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

8. 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 that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

9. I have considered what Mr B said in his complaint which included the Council’s final response to him. The Council has also provided a copy of its procedure for dealing with persistent and unreasonable complainants. Mr B commented on a draft before I made this decision.

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What I found

Time limits

10. Mr B says he has been complaining to the Council about issues for three years. We would not consider a complaint about something he was aware of for more than twelve months unless he could show there was some exceptional reason he had not complained to us before.

Standards of repair and use of council tax

11. We cannot look at complaints about the use of council tax as this affects all or most of the residents of the Council’s area.
12. It is for the Council to decide how it carries out repairs and what priority to give to any work.
13. Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
14. If Mr B considers the Council is not keeping a particular section of road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
15. I consider it would be reasonable for Mr B to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Use of central government funds.

16. We cannot look at complaints about this as it affects all or most of the residents of the Council’s area.

Response to requests under the Freedom of Information Act 2000

17. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). We normally consider it reasonable to expect a complaint about freedom of information to be referred to the Information Commissioner.

Damage to vehicles

18. If Mr B believes the Council is responsible for damage to a vehicle, his complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
19. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.

Council treating Mr B’s contact as ‘persistent and unreasonable’

20. The Council has a procedure for dealing with people it regards as persistent and unreasonable because of the nature of their communications with it.
21. It is for the Council to decide when to implement its procedure. We will not find the Council to be at fault if it complies with the procedure and there is nothing to suggest it has not done so in Mr B’s case.

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Final decision

22. I have decided we will not investigate this complaint for the reasons set out in paragraphs 10 to 21.

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Investigator's decision on behalf of the Ombudsman