Summary: We will not investigate Mr X’s complaint about repairs to the public highway close to his home. This is because there is not enough evidence of fault by the Council or that Mr X has suffered significant personal injustice. Also, if Mr X remains unhappy with the condition of the public highway, it is reasonable for Mr X to use the legal remedy available to him.

The complaint

1. The complainant, whom I shall call Mr X, complains about repairs to the public highway close to his home. Mr X is unhappy with the time taken to complete the repairs and the quality of the work. Mr X is also unhappy with the way his complaint has been dealt with.

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The Ombudsman’s role and powers

2. 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, or
• it is unlikely further investigation will lead to a different outcome, 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)

3. 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)
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. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

What happened

7. In August 2020, Mr X contacted the Council by telephone about repairs to the public highway close to his home. Mr X said that work which started in April had not been completed. Mr X said that temporary white lines had been painted, only for workers to return six weeks later to resurface the road. This covered the white lines. Mr X was unhappy the replacement road surface produced loose chippings which could damage cars.
8. The Council responded to Mr X. It said that:
• It did not have the funds to resurface every road. Where appropriate, it used specialist treatments to seal the carriageway.
• The surface dressing used close to Mr X’s home was a preventative treatment, used nationally by councils.
• Before it applied the surface dressing, the Council carried out preventative patching to repair any defects. It carried out this work in April, and it only applied safety critical road markings as they would be covered by the subsequent surface dressing.
• The surface dressing was applied in June. The surface was rolled to embed the stones, with vehicles using the road embedding them further.
• The Council had inspected the road and it was happy with the work.
9. Unhappy with the Council’s response, Mr X telephoned the Council on 02 September. Mr called again on 08 September and said it was difficult for him to put a complaint in writing because he was dyslexic. Mr X said he was unhappy because:
• The Council had told him the work had been completed when it had not.
• The standard of the work was poor.
• Mr X had told the Council work needed to be done, but it had ignored him.
10. Mr X wrote to the Council on 14 September. Mr X referred to problems with the work dating back to when it started. These included poor signage and vehicles obstructing the pavement. Mr X said the work to the public highway was not complete and there were serious problems with the quality of the work.
11. Mr X sent the Council a further letter on 20 September. Mr X said he had asked for an opportunity to meet with someone to discuss his complaint, but his request had been refused because of COVID-19. But when he visited the council’s offices “a dozen or more people walked in through the door without an appointment.” Mr X said he had over 100 photographs relevant to his complaint. Mr X had walked the affected road and most of the work he considered outstanding had not been completed. Mr X had identified a blocked gully.
12. The Council responded to Mr X in October 2020. In its response it said that:
• The Council disagreed with Mr X that the standard of work was poor.
• An inspection on 07 September did not identify any defects warranting extra work.
• The Council has a drainage inspection programme and it had cleaned the gully Mr X referred to on 08 September. There had been no reports of flooding.
• The Council had invited Mr X to send photographs in support his complaint, but it had not received any.
• Mr X had “regularly, repeatedly and very persistently spoken at length with various officers on the same subject…Telephone contact from you has, in some weeks, been on a daily basis. You have informed the Council that you have…dyslexia. The Council understands that electronic communications can be problematic…that you are more comfortable with written letters. The Council notes and has accommodated this.”
• If Mr X remained unhappy, he could contact the Ombudsman.

Assessment

13. The Ombudsman does not investigate all the complaints we receive. In deciding whether to investigate we need to consider various things. These include the likelihood of finding fault, the injustice to the person complaining, and if there is an alternative remedy available to the person complaining. We also have no powers to question a council’s decision if there was no fault in the way the decision was reached.
14. The Council has considered Mr X’s concerns and has provided what I consider to be proportionate and reasonable responses. It has explained the rationale for the work carried out. The Council has visited the site and considers the work to be of an appropriate standard. It has decided no further work is needed. This is a decision the Council is entitled to take. On balance, I do not think there is enough evidence of fault in how the Council has reached this decision to warrant our involvement. Also, while it is clear Mr X feels strongly about the work carried out to the public highway, I do not think there is enough evidence it has cause Mr X significant personal injustice to warrant an investigation.
15. There is also a legal remedy available to Mr X if he remains unhappy with the work the Council has carried out. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Although this duty to maintain public highways is set out in law, the level of maintenance, frequency of inspections, and threshold for repairs is not. It is therefore open to interpretation.
16. If Mr X thinks the Council is failing to comply with this duty, then, under Section 56 of the Highways Act, he can serve notice on the Council to carry out repairs. If the Council does not act, Mr X can apply to the Magistrates’ Court for an order requiring the Council to act. The Council would be bound by any order made by the Magistrates’ Court.
17. I consider it would be reasonable for Mr X to follow the process set out above. This is because:
• It is the specific remedy the law provides;
• the process is not complicated;
• there is no charge for the initial step of serving notice on a council; and
• the Court has powers we do not have to order a council to do the work.
18. Mr X is also unhappy with the way his complaint has been handled and says the Council has not taken into account his dyslexia. The Ombudsman will not investigate a council’s complaint handling if we are not going to look at the issue which led to the original complaint. This applies here.
19. But, even if we were to investigate, I do not think we would find fault causing significant personal injustice from the way the Council has dealt with Mr X’s complaint. Mr X has been able to speak to council officers. Mr X made his stage 1 complaint over the telephone, while the basis of his stage 2 complaint was set out in two letters Mr X sent to the Council. The issues at the heart of Mr X’s complaint have been responded to by the Council. While I know Mr X is disappointed with the responses he has received, this does not mean the Council’s handling of his complaint has been flawed.

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Final decision

20. We will not investigate Mr X’s complaint. This is because there is not enough evidence of fault by the Council or that Mr X has suffered significant personal injustice. If he remains unhappy with the condition of the public highway, it is reasonable for Mr X to use the legal remedy available to him.

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Investigator's decision on behalf of the Ombudsman