Summary: We will not investigate this complaint that the Council has failed to ensure the highway verge is maintained to a safe standard. There is not enough evidence that fault by the Council has caused the complainant a significant injustice, it is reasonable to expect him to pursue a court remedy, and we will not look at the complaints process in isolation.

The complaint

1. Mr X complains the Council has failed to take action against sub-standard alterations made to the highway verge area outside a property on his road.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The law also 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. And 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 information provided by Mr X and the Council, which included their complaint correspondence and information about the works proposed at the neighbouring property.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

Summary background

8. Another resident on Mr X’s road had works done to the front of their property. During these works, some tarmac was deposited on the grass verge between the road and the footpath. Mr X contacted the Council as he was concerned this surface, as well as older alterations to another vehicle crossover at the property, were unsafe.
9. During the subsequent complaint process, the Council visited the site twice. I understand it was satisfied there were no actionable defects in the footway, so no repair works were required at that time.
10. In response to my enquiries, the Council confirmed Mr X’s neighbour does have permission to reinstate the existing crossover to a full-height kerb and to create a new crossover where the tarmac was deposited. These works have not been started yet.

My findings

11. Having inspected the site twice, the Council was entitled to reach a professional judgement that no works to the footway are required at the present time; the Ombudsman does not provide a right of appeal against that judgement.
12. If Mr X continues to believe the Council is failing in its duty to maintain the highway, he can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. If the Council does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
13. I consider it reasonable to expect Mr X to use this court remedy because it is in the best position to decide whether the Council is responsible for maintaining this road, and if so, whether it has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work. So, the Ombudsman will not investigate that part of the complaint.
14. And, even if this legal remedy was not available, we do not start an investigation if we decide the impact of the alleged fault is not so significant or serious that we should investigate. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures.
15. Whilst I appreciate Mr X has concerns about the current safety of two areas outside the neighbour’s property, I am not persuaded they have caused him a significant personal injustice, so we would not investigate the complaint for this reason too.
16. As we are not investigating the substantive issue at the heart of the complaint, we would not normally pursue any ongoing concerns about the Council’s complaints process in isolation.

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Final decision

17. We will not investigate Mr X’s complaint because there is not enough evidence that fault by the Council has caused him a significant injustice, it is reasonable to expect him to pursue a court remedy, and we will not look at the complaints process in isolation.

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Investigator's decision on behalf of the Ombudsman