Summary: Mr X complained the Council failed to keep its list of streets up to date and correct. We find the Council at fault for not making a timely decision on whether to update its list of streets. The Council has agreed to apologise to Mr X and provide him with an action plan for its next steps.

The complaint

1. Mr X complains the Council failed to keep its list of streets up to date and correct. Mr X says he provided the Council with independent evidence to show inaccuracies, but it has failed to act on this.

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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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We 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. 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)
5. If we are satisfied with an organisation’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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What I have and have not investigated

6. We cannot investigate complaints about events that took place more than 12 months before a complainant contacted our service. We can only exercise discretion to look back further if there are good reasons to do so.
7. Mr X first contacted us with this complaint in October 2023, meaning anything that took place before October 2022 has been raised late.
8. Mr X previously complained to us about issues linked to this complaint that go back further than October 2022, but I have not looked into those issues as we have already issued a decision on them.
9. I have investigated Mr X’s complaint about the Council’s alleged failure to consider his evidence and update its list of streets from the time he presented the Council with independent evidence in November 2022.

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How I considered this complaint

10. I spoke to Mr X about his complaint and considered information he provided. I also considered information received from the Council.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

List of streets

12. Councils must make and keep corrected up to date lists of streets within their area which are highways maintainable at public expense. (Highways Act 1980, Section 36(6)). There is no defined format for the list of streets, and this can be kept either as a map or as a list.
13. It is the responsibility of each council to decide how best to make and keep corrected up to date its own list of streets. Each case must be decided on its own facts but there is no need to introduce any prescriptive rules about the format in which any such list is kept. (Fortune et al v Wiltshire Council and Taylor Wimpy [2010] EWHC B33 (Ch))

The Council’s policy

14. The Council holds its list of streets in two formats:
• a spreadsheet that is uploaded to its website monthly; and
• the Highway Record which shows the extent of highway maintainable at public expense in paper map and digital formats.
15. The Council does not have a policy or process document outlining the procedure for updating the list of streets. Responsibility for this is shared between its Highways Asset Management Team and Highways Records Team. The most common type of change to the list of streets that the Highways Asset Management Team oversees is the addition of newly adopted roads.
16. In addition to adding newly adopted roads, the Council has a Highway Protocol document for making changes that is used when a need for alteration to the list of streets has been identified. The Highway Protocol document needs to be accompanied by supporting evidence. The Council decides on these based on the balance of probabilities after extensive research.

Principles of Good Administrative Practice

17. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
18. This document recommends councils take reasonable, timely decisions by planning and prioritising resources, explaining and responding to delays proactively.

What happened

19. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
20. In November 2022, Mr X contacted the Council to explain he believed its list of streets was incorrect. Mr X provided an independent expert report that he had commissioned to support this.
21. In March 2023 Mr X contacted the Council to ask why it had not yet updated its list of streets in light of the report he had provided. Mr X said failure to do so meant the land in question was open to the threat of squatters and put access to his home’s services in doubt. Mr X explained as a result of the list of streets being incorrect, he could not get Gigaclear Broadband to his home, even though other houses on his road could. The Council responded to explain it was considering the report and aimed to make a decision within 12 months of his recent contact.
22. Mr X responded to the Council to say the 12 months should run from when he first provided the independent expert report. The Council acknowledged Mr X's email but did not agree to make a decision any sooner.
23. In August 2023, Mr X complained to the Council as he said it was failing in its duty to keep the list of streets correct. Mr X said he had provided evidence of this over nine months ago, but the Council had failed to act. Mr X reiterated the Council should make a decision within 12 months of him having first provided the report and said the Council’s refusal to correct the list of streets was discrimination against him and his family.
24. The Council responded to Mr X’s complaint, agreeing it was under a legal duty to keep its list of streets under review and make changes as necessary. The Council agreed Mr X had made a substantive challenge to its records but said it needed to carry out significant research before it could make any changes. The Council said Mr X was the only interested party at present and there was no risk of harm to the public so other things had taken priority. The Council pointed out there was no statutory time limit, and the 12 months it had quoted previously was only an estimate. The Council said it did not accept it was discriminating against Mr X and his family.
25. Unsatisfied with its response, Mr X asked the Council to reconsider his complaint. He said the Council had a duty to process and correct errors in its list of streets as soon as they came to light, and it was failing to meet its legal duty. Mr X said the Council’s failure breached his human rights.
26. The Council responded to Mr X’s complaint agreeing it had a duty to maintain its list of streets and keep this up to date but said there was no statutory direction for seeking variations or timescales for determining amendments. The Council explained it had previously quoted 12 months as a baseline estimate. It said it could not see any evidence it had breached Mr X’s human rights.
27. In response to our enquiries, the Council explained:
• The Council receives numerous challenges to and questions about the list of streets every year. These are usually resolved by email exchange without the need to amend the list of streets or investigate, but in some cases, like Mr X’s, further research is needed.
• The evidence Mr X has provided is historic in nature and dates back as far as the 1700s. The Council recognises the report Mr X has provided is a substantive challenge to its list of streets and warrants further investigation as it is likely further evidence exists. Mr X’s case is with an experienced case officer who has made numerous visits to the Wiltshire and Swindon History Centre specifically to investigate records relating to the land in question between 1603 and 1974.
• Its case officer plans to complete a draft report at the earliest opportunity, but this must be balanced against other work that comes with statutory deadlines such as public enquiries and Freedom of Information requests. Once the draft report is completed and considered by an expert in this area of law, the Council will either make changes to the list of streets or let Mr X know why not.

Analysis

28. The Council has a statutory duty to keep a list of streets that are maintainable at public expense, but there is no specific format this list needs to take. The Council holds its list of streets in both a spreadsheet and a map, both of which are available for public viewing. I do not find the Council at fault here.
29. The Council is also under a statutory duty to keep its list of streets up to date, but the law does not set out a specific process for doing so. The Council has explained it accepts challenges to its list of streets and considers any evidence it is presented with before deciding if it needs to make any changes. It is for the Council to decide how to consider challenges to its list of streets and I do not find it at fault here.
30. Mr X provided the Council with evidence to support his claim its list of streets is incorrect. The Council has explained it is in the process of considering the evidence Mr X has provided. It has explained a case officer has been carrying out research as far back as 1603 to come to a decision and I find no fault with the Council’s decision-making process.
31. Mr X has said the Council ought to have decided by November 2023, 12 months after he submitted his evidence. I can understand Mr X’s frustration at the length of time it has taken the Council to make a decision so far, but there are no statutory time limits in which it needs to operate. I do not find the Council at fault for delays in the process where it has not exceeded a set time limit.
32. With that being said, we do expect Councils to make timely decisions. While the Council has not breached any statutory time limits, it has now taken more than 20 months to make a decision. This is a sizeable delay and amounts to poor practice, which is fault. This caused considerable uncertainty for Mr X, which is injustice.
33. When Mr X chased the Council for an answer in March 2023, it said it would aim to give him a decision within 12 months, meaning by March 2024. While this was only an estimate and not a definitive deadline, it raised Mr X’s expectations, which is fault and caused him uncertainty which is injustice.
34. The Council has not given a set date by which it will give Mr X an answer, but it has explained what action it is taking to reach a decision and that it has to balance this with other priorities that do have statutory time limits. Again, I appreciate this must be frustrating for Mr X, but I do not find the Council at fault here.

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Agreed action

35. To remedy the injustice identified above, within one month of the date of this decision, the Council has agreed to:
• Write to Mr X to apologise for the length of time it has taken to reach a decision on whether to update its list of streets. This letter will also set out what steps the Council is planning to take next and a timescale for completing those actions.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I find the Council at fault for the length of time it has taken to decide whether to update its list of streets. I do not find fault with how the Council administers its list of streets or how it has responded to Mr X’s claim this needs to be updated. The Council has agreed with my findings, and 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