Summary: We will not investigate Mr Y’s complaint about the Council’s refusal to maintain the road where he lives. This is because there is not enough evidence of fault to justify an investigation.

The complaint

1. Mr Y complains the Council refused to repair or take responsibility for the condition of the road where he lives. He complains the Council insisted the road was unadopted. But Mr Y says the Council has control over certain uses of the road, such as managing access, parking and permits, and use of the road by Council-operated refuse collection vehicles. He thinks the Council should adopt the road and maintain it or contribute towards its repair.

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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 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:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

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

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

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

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My assessment

7. The Council told Mr Y that the road is not an adopted highway. Therefore, the road is not maintainable at public expense as set out in the Highways Act 1980. It is the responsibility of the private landowners (the frontagers) to carry out any maintenance works. The Council suggested Mr Y check HM Land Registry to find out who owns the road.
8. When considering complaints, we may not question the merits of the decision the Council has made or offer any opinion on whether we agree with the Council’s decision. In this case the Council has explained the responsibilities of the highway authority and private landowners regarding the unadopted road. The Council has no power to require the landowner to act to maintain the road. Further, it has explained that use of the road by Council waste collection vehicles and members of the public does not impose any duty on the Council to repair the road. The Council confirmed that its enforcement activity and traffic management measures in the area relate to the nearby adopted highway only. There is not enough evidence of fault by the Council. So, we will not investigate this complaint.
9. Mr Y complains the Council failed to satisfactorily respond to his request for information from the Council’s highways register showing the legal status of the road. If Mr Y has not already done so, it is open to him to make a Freedom of Information request to the Council about these records. The Information Commissioner’s Office (ICO) is better placed than us to consider whether the Council’s response complies with its obligations under the relevant legislation. For these reasons, we will not investigate.

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Final decision

10. We will not investigate Mr Y’s complaint about the Council’s refusal to maintain the road where he lives. This is because there is not enough evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman