Summary: We will not investigate this complaint about the Council charging Mr and Mrs X to complete works to make the highway safe. This is because there is not enough evidence of fault causing significant injustice.

The complaint

1. Mr and Mrs X complain the Council acted unfairly in charging them to replace a broken railing in front of their house.

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The Ombudsman’s role and powers

2. 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
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The law 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)

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How I considered this complaint

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

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My assessment

6. Mr and Mrs X reported a broken railing to the Council as they were concerned someone may be injured. The railing ran in front of their house and others. They jointly owned the fence.
7. Under the Highways Act 1980 the Council may issue a notice to the owner to complete works to address inadequate fencing that is a danger to people using the street.
8. In March the Council served a notice on Mr and Mrs X giving them 28 days to replace, remove, enclose or otherwise protect the fencing, failing which the Council would carry out the works and charge them.
9. The Council did not notify Mr and Mrs X they had a right to appeal this notice to the Magistrates’ court and therefore I do not consider it was reasonable for them to do so. However, there is not enough evidence of fault in the Council’s decision to issue a notice to justify an investigation.
10. The Act says if the owner does not complete the works by the date specified, the Council may complete the works itself and recover the cost from the owner.
11. Mr and Mrs X did not complete the works and in May the Council replaced the fence and invoiced them for the cost. It was up to the Council what action to take to make the fence safe. There is not enough evidence of fault to justify an investigation.
12. I note the Council initially told Mr and Mrs X they did not have to pay for the works, before saying they did. Further, that Mr and Mrs X complain of delays in the Council’s decision making. However, any distress and uncertainty arising from this does not cause a significant enough injustice to warrant an investigation.

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Final decision

13. We will not investigate Mr and Mrs X’s complaint because any injustice is not significant enough to justify our involvement.

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Investigator's decision on behalf of the Ombudsman