Summary: We will not investigate this complaint about how the Council dealt with Mr X’s concerns about the obstruction of the highway. This is because Mr X has approached the courts about the matter, and we cannot investigate complaints about the start of court action or what happened in court.

The complaint

1. Mr X complains the Council failed to deal with obstructions on the highway and says it has not properly responded to the notice he served under section 130 of the Highway Act. Mr X also says the Council has refused to accept his complaint as he is taking legal action on a different matter, in a different location on the same highway. Mr X says the obstructions created on the highway prevents his right of way. He says the Council’s failure to accept his complaint prevents his use of the courts.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

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

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My assessment

7. Section 130 of the Highways Act 1980 places a duty on highway authorities to assert and protect the rights of the public to use and enjoy any highway for which they are the authority.
8. Mr X complained the Council failed to follow the correct procedures following the complaint he raised to it about an unlawful obstruction, disrupting his public right of way. Mr X complained these actions prevented him from disputing the matter in court.
9. The Council has confirmed Mr X’s concerns about the highway obstruction are due to be heard in court. The law says we cannot investigate a complaint where someone has sought a remedy by way of proceedings in any court of law even if it could not provide a complete remedy for all the injustice claimed. Mr X has raised the matter with the courts; therefore, we cannot investigate.
10. Mr X has also complained about the Council’s complaint handling and says it refused to deal with his complaint due to unrelated court proceeding. However, where the Ombudsman has decided not to investigate the substantive issues complained about, we will not usually use public resources to consider more minor matters such as complaint handling. The Council has also now sent a response to Mr X’s complaint.

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Final decision

11. We cannot investigate Mr X’s complaint because he has approached the courts about the matter and we cannot investigate complaints about the start of court action or what has happened in court.

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Investigator's decision on behalf of the Ombudsman