Kent County Council (20 012 562)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 31 Mar 2021

The Ombudsman's final decision:

Summary: We will not investigate Mrs B’s complaint about its duties under section 130 of the Highways Act 1980. This is because we cannot achieve the outcome she is seeking and it is not unreasonable to expect her to take the vehicle damage issue to court if it remains unresolved.

The complaint

  1. The complainant, Mrs B, complained that the Council has failed to carry out its duties under sections 130 (1) and (4) of the Highways Act 1980 and has refused to remove an unlawful encroachment. Mrs B told us, because of the Council’s failure to act, she is unable to cut her hedge without putting her life in danger and she has had to meet the cost of repairs to her car.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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. 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
  • 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)
  1. 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)

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How I considered this complaint

  1. I have considered the information Mrs B provided. Mrs B has had an opportunity to comment on my draft decision. I considered her comments and photographs before making a final decision.

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What I found

  1. When Mrs B complained to the Council she said, when she was cutting her hedge, she had caught her foot in the undergrowth and then nearly fell into the path of fast-moving traffic several times. To put things right Mrs B wants the Council to cut the full width of the highway verge for her safety and to remove the items placed on the verge. She also wants the Council to pay for the cost of the repairs to her car.
  2. Mrs B lives in a rural area. She has complained about the Council not treating the verge outside her property in the same way as the verge on the opposite side of the road. When the Council replied to her complaint is said it had cut the highway verge each year in accordance with its policy for asset management of soft landscape areas. It explained it does not cut the full width of rural roadside verges. Its normal practice is to cut a 900mm strip from the hard edge of the road and to cut vegetation on the verge to a height of around 75 to 100mm.
  3. It is common practice for highway authorities to carry out a maximum of one or two annual cuts to the highway verges in rural areas up to 1000mm from the road edge. That is done to maintain visibility for users of the road. They may also cut around verge markers. It is for councils to decide how they will manage their own soft landscape areas. The Council has applied its policy in the case of the highway verge outside Mrs B’s home. While Mrs B has clear concerns for her personal safety, we have no powers to order the Council to do additional grass verge cutting over and above its normal standards. It would be for the courts, ultimately, to rule on whether the Council is in breach of the law.
  4. The view of the council officer who deals with highway issues in Mrs B’s area is the items on the verge do not present a highway hazard. Mrs B disagrees. She told us the Council has installed new reflective markers but they are already getting pushed over because the road is too narrow. It is not our role to determine whether the council officer or Mrs B are right. We cannot question the merits of the Council’s view if there is no evidence of fault in the process of reaching it. The Council’s officer has inspected the area and has told Mrs B he has passed it again several times since then without finding a hazard for highway users. In its final response to Mrs B’s complaint the Council assured her it would continue to monitor the situation.
  5. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability for damage to vehicles. Claims for damage to vehicles are a matter for the Council’s insurers and, ultimately, for the courts. It is therefore open to Mrs B to submit a claim to the Council’s insurers, and if she cannot resolve the matters through insurers, she could pursue the matter further in court. I consider it is not unreasonable to expect Mrs B to follow this route, because, in contested cases, only the courts can decide if the Council is liable for the damage and what compensation must be paid. The Ombudsman has no powers to enforce such a remedy.

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Final decision

  1. We will not investigate this complaint. This is because we cannot achieve the outcome Mrs B is seeking and it is not unreasonable to expect her to take the vehicle damage issue to court if it remains unresolved.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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