Summary: We will not investigate this complaint about a highway obstruction because the courts are better placed to consider the complaint and further investigation would not lead to a different outcome.

The complaint

1. Mr Y complained the Council has failed to ensure vegetation which he says is obstructing a public footpath and highway in his area is sufficiently cleared. Mr Y is also unhappy with the Council’s response to his complaint, which he said promised to do work, which has not yet been completed.
2. Mr Y says his car has been damaged by the overgrown vegetation.

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The Ombudsman’s role and powers

3. We 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 or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

4. 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

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
7. Consequently, any claim for damages, such as costs for repairs to his car, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. We will not investigate this complaint.
8. Since Mr Y initially complained to it, the Council has attended the site and carried out maintenance work to cut back some of the vegetation. It is satisfied as the highways authority that the work completed is sufficient. If Mr Y wishes he has a right to service a notice on the Council requiring it to clear an obstruction to the highway under the Highway Act 1980, section 130. If the Council fails to do this, he can then ask the Magistrates Court to order the work to be completed, which we cannot do. As the court has the power to make such an Order, it is better placed than us to consider the complaint. We will therefore not investigate.
9. Further, the Council has said it has now written to the landowner which Mr Y says has allowed the vegetation to become overgrown and is following the enforcement process. As this is the action we would likely recommend, if we were to find fault, and the Council is already doing this, further investigation would not lead to a different outcome to that which has already occurred. Consequently, we will not investigate.

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Final decision

10. We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman