Surrey County Council (24 008 912)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 12 Nov 2024

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the way the Council handled works to the kerb along the complainant’s road. This is primarily because there is not enough evidence of fault by the Council, and it is reasonable to expect the complainant to use the court remedies available to him.

The complaint

  1. Mr X complains about the way the Council handled repair works to the kerb along his road. In particular, he says the project was poorly specified, poorly managed, and poorly inspected, and was undertaken with no foresight for the road user or the plight of many residents who have no off-road parking. This has resulted in an already narrow road being transformed into one of inconsistent width, narrower than it was before, and with higher kerb stones. This makes it difficult for large vehicles to pass by, and Mr X’s cars have been damaged on several occasions whilst parked outside his house.

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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. 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:
  • there is not enough evidence of fault to justify investigating, or
  • we could not add to any previous investigation by the organisation, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • there is no worthwhile outcome achievable by our investigation.

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

  1. In relation to the first bullet point above, our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. And we cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

  1. I considered information provided by Mr X and the Council.
  2. I also considered the Ombudsman’s Assessment Code.

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My assessment

  1. I appreciate Mr X is unhappy about the works along his road, and about the Council’s general handling of highway issues in his area.
  2. But, on balance (and with reference to paragraphs 3 and 4 above), I consider there is not enough evidence of fault in the way the Council has carried out the works to justify starting an investigation. In reaching this view, I am mindful that:
  • The Council says the original width of the road has not been altered during the works. Rather, it says where the existing kerbs stones were no longer upright (typically collapsed in an outward direction away from the highway), the new ones were placed in the same positions as the original/historical kerb line. This can give the impression of a narrowing of the highway and would also account for the variance in width along its length. In the absence of any accurate evidence of the historical width/line of the road, an investigation by the Ombudsman is therefore unlikely to be able to establish if the Council has acted with fault.
    • The Council has also explained that due to operational demands and limited budget, it does not currently intend to seek an agreement (under section 38 of the Highways Act) to acquire the neighbouring borough council/common land in order to widen the road. That is a decision the Council is entitled to make, even if Mr X disagrees with it.
  1. We also cannot force the Council to initiate the section 38 process, so we cannot achieve one of the outcomes Mr X is seeking.
  2. And if Mr X believes the Council is liable for the damage to his vehicles, then we would normally expect him to seek a remedy in court, either directly or through his insurers. This is because we cannot determine questions of negligence or liability, and have no powers to enforce an award of damages. I do not consider there is any exceptional reason why Mr X could not use this alternative remedy. The restriction I outline at paragraph 5 above therefore applies, and so I do not propose investigating the complaint for this reason too.
  3. Similarly, we normally take the view the courts are in the best position to decide whether a local highways authority has complied with its statutory duty to maintain a highway. So, if Mr X believes the Council has failed to properly maintain other roads in his area, it seems reasonable to expect him apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980, requiring the Council to carry out works.
  4. Finally, any parts of the complaint about the quality/longevity of the work in relation to the use of taxpayers’ money would be outside our jurisdiction, as this is something which affects all or most people in the Council’s area.

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Final decision

  1. We will not investigate Mr X’s complaint for the reasons outlined above.

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Investigator's decision on behalf of the Ombudsman

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