Summary: We will not investigate this complaint about the condition of the highway and grass verge in the complainant’s local area. There is not enough evidence of fault causing a significant personal injustice, it is reasonable to expect the complainant to pursue a court remedy, and the Council has apologised for delays in its communications.

The complaint

1. Mr X says the Council has failed to adequately respond to his concerns about:
• the surface of the road and footpath around a nearby development site, and
• a resident removing and concreting over the grass verge on the highway.

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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. So, we do not start an investigation if we decide:

• 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 this complaint, or
• we are satisfied with the actions the Council has already taken in response to the complaint.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

3. 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. 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.
7. I appreciate Mr X believes the removal of the grass verge by another resident is an offence to public property. But I am not persuaded it has caused him a significant personal injustice, so we will not investigate this part of his complaint.
8. And regarding the condition of the highway surface around the development, the Council says its Inspectors are in the process of working with the developer to resolve outstanding remedial items.
9. 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.
10. 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 either.
11. Finally, the Council has apologised for the delays in responding to Mr X’s enquiries/complaints. This was a reasonable way to address the fault, so we will not pursue the matter further.

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Final decision

12. 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 the Council has apologised for delays in its communications.

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Investigator's decision on behalf of the Ombudsman