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Lancashire County Council (20 005 549)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 08 Mar 2021

The Ombudsman's final decision:

Summary: Mr D complained the Council had not maintained a Traffic Regulation Order and failed to specify the required standard of road resurfacing to its contractor for a highway near his home. He also said the Council failed to respond properly to his complaint. As a result, Mr D says he experienced distress and his safety was at risk when exiting onto the highway. The Council was at fault for failing to maintain its Traffic Regulation Order, but this did not cause a personal injustice to Mr D. There was also fault in its failure to respond properly to his complaint. The delay and uncertainty from this caused Mr D some distress. There was no evidence of fault on the road resurfacing matter. The Council has agreed to apologise and make a payment to Mr D to acknowledge the distress caused.

The complaint

  1. The complainant, whom I shall refer to as Mr D, complained the Council did not manage a Traffic Regulation Order (TRO) for a highway near his home properly. He says it failed to adequately specify the road resurfacing requirements to its Contractor and it failed to maintain a double yellow line as set out in the TRO.
  2. He also complains about the Council’s handling of his complaint. He says it did not respond to the matters he complained about and it tried to mislead him.
  3. As a result, Mr D says he experienced distress and his safety is at risk when exiting onto the highway.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. 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)
  4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
  5. 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)
  6. 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. As part of this investigation:
    • I considered the complaint made by Mr D and the Council’s responses;
    • I discussed the complaint with Mr D over the telephone;
    • I considered the Council’s responses to my enquiries; and
    • I have considered Mr D’s and the Council’s comments on a draft version of this decision.

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What I found

Legal background

Maintenance of Highways

  1. Highway authorities have duties under the Highways Act 1980 (the Act) to maintain a reasonable level of safety and convenience for the travelling public. Their primary responsibility is maintaining the structural integrity of the highway and dealing with serious safety issues.
  2. Any person who alleges that a highway is out of repair can serve notice on the authority. The Authority must confirm if it is responsible for its maintenance.
  3. If the person is not satisfied with the authority’s response or actions, he can within six months apply to a magistrate’s court for an order requiring the authority to take whatever action to bring the highway up to standard.

Traffic Regulation Orders

  1. A highways authority can under the Road Traffic Regulations Act 1984 (the Act) make a Traffic Regulation Order (TRO) to meet its duty to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway.
  2. Any person may question the validity of a TRO on the grounds that it was not within the authority’s relevant powers or any of the relevant requirement has not been complied with. A challenge must be made to the High Court within 6 weeks from the start date of the Order.

What happened

  1. Mr D lives in a street which exits onto a highway (street X).
  2. The Council has an agreement with a single highway maintenance contractor (the Contractor) to maintain and repair its highways. In 2017 the Contractor resurfaced street X and repainted the road markings.
  3. Mr D was unhappy about the standard of the road surfacing and said it quickly broke up. And so, he asked the Council for a copy of the TRO in place for street X and the Council provided this to him.
  4. In early 2019 Mr D complained to the Council. He said the double yellow lines on street X were not as set out in the TRO. He said this caused a risk because cars could park where the double yellow lines should have been marked out, and therefore there was a poor visibility when exiting onto the street.
  5. The Council considered Mr D’s concerns and acknowledged the double yellow lines were not to the length specified in the TRO. It told Mr D it would take steps to address the missing lines and this was likely to need a consultation. It also marked his enquiry as resolved.
  6. Mr D was unhappy with the Council’s response. He said the issue was not resolved and he questioned why a consultation was needed.
  7. The Council’s Road Traffic Technician considered the impact of the missing double yellow lines but did not find the error significant enough to cause a detriment to sight lines. The Council decided not to replace the missing lines, but to amend the TRO to the match the lines already marked out. And so, it asked its legal team to confirm if a consultation was required to amend the TRO. The solicitor told the Council a consultation was needed because there was a TRO in place for the lines.
  8. The Council told Mr D about the legal advice it received. It said it could not change the incorrect double yellow line because it had been wrongly marked out for at least 10 years. It also explained it had marked his enquiry as resolved as it was taking steps to address it.
  9. Mr X disagreed with the Council’s view. And so, he raised a freedom of information request with the Council, which included information about the legal advice and its agreement with its road resurfacing Contractor.
  10. The Council provided some information to Mr D, but refused to provide the legal advice. And so, Mr D complained to the Information Commissioner’s office (ICO).
  11. In March 2019, the Council’s Cabinet considered the amended TRO for street X. The minutes of the meeting said the Council considered objections from Mr D and no consultee objected. It also considered its Road Traffic Technician view and that no accidents had been reported in a 6-year period. And so, it decided to approve the amended TRO.
  12. During the following year, Mr D waited for the ICO’s decision on his complaint. The Council provided some additional information. However, it withheld some of the information Mr D asked for because it was waiting for the outcome of the ICO’s investigation.
  13. In mid-2020, the ICO found the Council should not have withheld the information Mr D asked for and told the Council to provide this to him. This included the legal advice it received in relation to the TRO. And so, the Council provided the information to Mr D.
  14. Mr D considered the information he had received and complained to the Council. He said it had failed to:
    • maintain the TRO and the double yellow lines;
    • analyse the risk to his and public safety when exiting onto street X from the street where Mr D lives;
    • specify the standard of road resurfacing to the Contractor resulting it poor resurfacing work; and
    • handle his freedom of information request properly.
  15. In response the Council told Mr D it had complied with the ICO request and considered the matter closed.
  16. Mr D told the Council on two further times it had not responded to the other matters in his complaint.
  17. In response the Council continued to consider the matter closed and told Mr D he could complain to the ICO or the Ombudsman.
  18. Mr D was unhappy with the Council’s responses. And so, he complained to the Ombudsman.
  19. During our consideration of the complaint, the Council decided to consider Mr D’s complaint under its stage two complaints procedure. Its response said it:
    • did not treat Mr D’s stage one complaint as a corporate complaint as he mentioned the ICO and it had fulfilled its actions relating to this matter.
    • agreed the surface dressing applied in 2017 had broken down quickly. However, its Contractor had resurfaced and repainted lines in 2018. It also said it had inspected the street again and found the surface and lines adequate.
    • had found no fault in its management of the TRO or its road repairs.
  20. The Council has also confirmed it has not yet implemented the TRO as it has prioritised other works. It said it will notify anyone that objected to the Order in line with The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, once the Order has been made.

Analysis

  1. Mr D’s complaint relates to the Council’s responses and actions since late 2018. Normally, we will only consider matters that occurred in the past 12 months before a complaint is brought to us. However, we have discretion to extend the period we consider. In this case, Mr D had continued to bring his concerns to the Council since late 2018 and there were delays because of the time it took the ICO to consider his complaint. I will therefore exercise my discretion to consider Mr D’s complaint from late 2018.

Road resurfacing

  1. Mr D complained to the Council about the standard of the road surface in street X. The Council confirmed it was responsible for the maintenance of street X. It inspected the street and agreed the road surface and road markings were a little worn. However, it decided it was a sufficient standard and did not require repairs at this stage. There was no fault by the Council. This is because it confirmed it was responsible for maintaining the street, inspected it and made a decision it was entitled to make. If Mr D disagreed with its decision, he could use his right to bring the matter to a magistrate’s court for an order requiring the Council to repair the street.
  2. Mr D also said the Council failed to adequately specify the road resurfacing requirements to its Contractor in 2017. He said this caused the street to break up quickly after the resurfacing and was a waste of taxpayers’ money. The Council agreed the road surface broke up quickly, but it arranged for its contractor to relay the surface in 2018. However, I will not consider this matter any further because Mr D was not caused a personal injustice as he did not suffer injury or damage to his car.

The Traffic Regulation Order

  1. The Council agreed it had failed to maintain the double yellow lines as specified in the TRO, which meant the incorrect length of double yellow lines were marked out for over 10 years. This is fault and the Council continues to be at fault until it has implemented the TRO or marked out the road as the set out in the original TRO.
  2. Mr D said as a result he was at risk of injury when exiting onto street X. The Council considered Mr D’s concerns and asked its Road Traffic Technician to assess the impact of the missing double yellow lines. The Council did not find a detrimental impact of sight lines. It also did not find evidence of any accident in the junction for the past six years. And so, it decided to correct its error by amending the TRO to match the lines already in place. Based on the evidence available, this was a decision the Council was entitled to make, and I have seen no evidence of fault in how the Council made its decision. I cannot therefore criticise the merits of its decision.
  3. I understand Mr D was concerned about his risk of injury or accident when exiting onto street X. However, he has not personally experienced any injury or accidents because of the Council’s failure to mark out the double yellow lines in accordance with the original TRO. I am therefore not satisfied the Council’s fault on this matter caused Mr D an injustice.
  4. In addition, the Council said it will notify the individuals who objected to the TRO once the Order is made. If Mr D wants to question the validity of the amended Order at this stage, he had the right to challenge the Order in High Court.

Complaints handling

  1. Mr D said the Council failed to respond properly to his complaint. The Council’s response to Mr D’s stage one complaint only addressed his complaint in relation to his freedom of information request. It failed to address any other part of his complaint. This is fault. This is because the Council’s response shows it did not intend to investigate or respond further to Mr D's complaint. It was only when Mr D complained to the Ombudsman the Council decided to consider the complaint under is stage two process. I am satisfied the Council did not properly respond to his complaint and this caused delay and some distress to Mr D.
  2. The Council has since responded to Mr D’s complaint in its stage two process and addressed each of his concerns.
  3. Mr D also said the Council tried to mislead him when it told him about the legal advice it had received. The legal advice said a consultation was needed because the Council was proposing a change to the TRO. However, the Council told Mr D a consultation was needed because the incorrect lines had been in place for over 10 years. Mr D could not find any law to this effect and so he lost trust in the Council’s handling of his complaint. Based on the evidence available, I cannot say the Council intentionally tried to mislead Mr D. However, its response was unclear and did not match the advice it received. I am satisfied Mr D was misled, which caused some uncertainty to Mr D and led to his mistrust in the Council’s handling of his concerns.
  4. Mr D’s complaint to the Council also related to its handling of his freedom information request. However, the ICO has already considered his complaint and it has made its decision, I will therefore not consider this matter any further.

Agreed action

  1. To remedy the injustice the Council caused Mr D, the Council has agreed to, within one month of the final decision:
      1. Apologise to Mr D for its delay and failure to respond properly to his complaint, including the uncertainty caused by its unclear information about the legal advice it received;
      2. Pay £150 to Mr D to acknowledge the distress caused, including the time and trouble in trying to get the Council to respond to his concerns.

Within three months of the final decision the Council should also:

      1. remind its staff of its responsibilities to consider and respond properly to the complaints it receives.

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Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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