Summary: The Council failed to respond in a timely and effective manner to Mr X’s letters about a grass verge near his home. The Council’s significant delays and poor responses caused avoidable frustration and put Mr X to unnecessary time and trouble. To put this right, the Council agreed to apologise to Mr X, pay him £250 and agree how to deal with the grass verge. The Council also agreed to review how its Highways Department handles correspondence from residents.

The complaint

1. Mr X says it took 15 months and a complaint to get a substantive response to his letter asking for evidence of an obstruction the Council said was in a grass verge near his home. The Council then only partially upheld Mr X’s complaint. The Council’s failure to respond caused Mr X unnecessary frustration and put him to avoidable time and trouble in trying to resolve matters.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for the Council for its comments on the complaint and on proposals to resolve the complaint; and
• shared the proposals for resolving the complaint with Mr X.

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What I found

Background

6. The Council is legally responsible for looking after local public roads and paths, including grass verges. The Council’s responsibilities include keeping roads, paths and verges free from obstacles that either may interfere with their lawful use and or make them unsafe.

A summary of what happened

7. Several decades ago, low height concrete blocks were placed in the grass verge near Mr X’s home. Mr X says he regularly mowed the grass verge for many years, which left the grass flush with the concrete blocks. Mr X then received a ‘Dear Occupier’ letter from the Council asking that he remove obstructions from the grass verge to avoid formal legal action and costs. The letter said Mr X would be liable for any injury or damage caused to people using the grass verge, which his insurance might not cover. The letter did not have Mr X’s full and correct address and its description of the grass verge and obstructions did not match the circumstances near his home. Mr X believed he might have received the letter in error as ‘obstructions’ had recently appeared on a verge that matched the descriptions in the Council’s letter. Mr X wrote back to the Council and asked for the evidence it held of obstructions near his home.
8. Over the next five months, Mr X sent four further letters to the Council chasing it for a reply. The Council then wrote to Mr X and apologised for its delay. The Council said an officer had visited his home both before and after it wrote to him about the obstructions but he was not at home. The Council accepted Mr X was not happy and invited him to telephone so its officer could arrange to visit him and talk about the matter. Mr X quickly replied and said he wanted the Council to respond to his original letter and provide evidence of the obstruction near his home.
9. In the four months that followed, Mr X sent the Council a further two chaser letters. A Council officer then made an unannounced visit to Mr X’s home. Mr X and the Council give differing accounts of this visit. Mr X says he explained he did not want a discussion but the Council’s written response and evidence of the obstructions. The Council says it did not promise to write to Mr X.
10. About two months later, Mr X wrote again to the Council saying he had yet to receive the Council’s written response about obstructions near his home. A month after that, Mr X made a formal complaint to the Council. Mr X’s complaint referred to various time targets published by the Council on its website for responding to correspondence from residents. Mr X said the Council had failed to comply with any time target or provide him with a service in response to his original letter.
11. In the complaint correspondence that followed, the Council’s position, in summary, was to accept it had not replied to Mr X’s original letter but:

• it had responded to Mr X and given him opportunities to move forward, first in inviting him to telephone and arrange a visit, and secondly, when its officer did visit his home; and
• the various time targets Mr X referred to were not relevant to his correspondence and it would change its published information to make this clear.

The Council partially upheld Mr X’s complaint, including because its complaints officers could not get evidence of the obstructions from the highways team.

12. Mr X’s position, in summary, was:

• he wanted a written response from the Council as neither party could prove what was said in a discussion and he should not have to spend his time and money arranging visits with Council officers; and
• one letter and an unannounced visit was not ‘taking steps’ to respond to his letter asking for evidence of the obstructions.

Mr X said his complaint should be fully upheld and asked for a review at the second and final stage of the Council’s complaints procedure.

13. The Council’s final complaint response continued to partially uphold Mr X’s complaint. The Council said to fully uphold the complaint it needed enough evidence it had not taken any action following receipt of Mr X’s original letter. The Council repeated that it had responded to Mr X’s letters. The Council also said it had not acted unreasonably in seeking to meet with Mr X and such meetings were helpful to both sides. Accompanying the response, were photographs of the concrete blocks in the verge near Mr X’s home. The Council accepted the concrete blocks were “not particularly high” but said they would be a visibility hazard once the surrounding grass grew. It was 15 months since Mr X had first asked for evidence of obstructions near his home.

Consideration

The Ombudsman’s jurisdiction

14. Mr X came to the Ombudsman more than year after first wrote to the Council. So, Mr X’s complaint is a ‘late complaint’ (see paragraph 3 of this statement). And yet, Mr X continued to write regularly to the Council after sending his original letter. Mr X also made his formal complaint just within a year of his first contact with the Council. In the circumstances, I have not applied a rigid approach to our ‘12-month rule’. Rather, I have used my discretion to consider the complaint, which Mr X brought to us quickly on receiving the Council’s final complaint response, which signposted him to the Ombudsman.

Mr X’s complaint

15. It is regrettable the Council did not act much sooner given it now says the concrete blocks near Mr X’s home present a danger to road users. However, I have not investigated the Council’s failure to act until it wrote to Mr X about 16 months ago. Factually, there are, and have been for many decades, concrete blocks in the highway verge near Mr X’s home. I do not therefore find the Council at fault in finally addressing its highway responsibilities about ‘obstructions’.
16. However, there is fault in the Council’s handling of its correspondence with Mr X, which has led him to make this complaint to the Ombudsman. The Council’s first letter to Mr X referred to legal liability, insurance matters and the possibility of legal action. Such a letter, especially with no prior contact from the Council, would be of significant concern and worry to many people. Mr X provided clear and sound reasons for believing he had received the letter by mistake. And, given the circumstances, Mr X made a proportionate, reasonable and understandable request of the Council for evidence of any obstruction in the verge near his home.
17. I find the Council’s unwillingness to provide a direct, substantive and timely response to Mr X is without merit. I see no justification for the Council needing 15 months to send Mr X two photographs as evidence of the obstruction. The Council could, and should, have resolved the matter within a few weeks of Mr X first writing and asking for clarification of the obstruction near his home.
18. I have considered the steps taken by the Council to respond to Mr X before sending him photographs of the concrete blocks. I recognise the Council may ask residents to telephone and or to meet with its officers. And yet, here, the Council could not insist that Mr X telephoned or admitted its officers to his home. Indeed, residents may have many reasons for not wanting telephone calls with and or visits from Council officers, including on disability and equality grounds. Mr X made clear in quickly responding to the Council’s second letter that he wanted a written response. Despite the Council’s preference for telephone calls and visits, it should at that point, at the latest, have sent Mr X its evidence of obstructions near his home. (Or, if it had good and sound grounds, written to Mr X to explain and justify why it would not send the evidence he asked for.) Indeed, it turned out that Mr X made a valid point about the limits of discussions. The Council’s complaint responses showed Mr X and the Council’s officer had different recollections of their brief meeting about whether the officer did/not agree to write to Mr X (see paragraph 9). I find fault here.
19. I have also considered what the Council says about time targets for handling correspondence like that sent by Mr X. Even if a council does not have published time targets for handing correspondence, it should respond to letters without undue delay. Here, it took five months for Mr X to get his first response. And, seven months (with a brief unannounced visit) had passed before Mr X then made a formal complaint as he had yet to receive a response to his second letter. These timescales show a failure to provide a service for responding to written correspondence. This is fault.
20. I thank Mr X for bringing what happened to the Ombudsman’s attention. However, I am concerned Mr X needed to when the underlying issue should have been efficiently and effectively resolved within weeks of his original letter to the Council. I have no doubt that Mr X would have dealt with the concrete blocks if the Council had quickly provided the evidence he reasonably asked for to clarify the obstructions referred to. Mr X was put to significant time and trouble chasing the Council for information and bringing his complaint to the Ombudsman. This time and its consequent cost to Mr X, and the frustration he will have been caused by not getting a timely written response from the Council, was avoidable. I find the Council faults I have identified caused Mr X injustice. (The cost to the public purse of Mr X’s complaint completing the Council’s complaints procedure and of an Ombudsman investigation was also avoidable.)

Agreed action

21. In asking the Council to comment on Mr X’s complaint, I set out proposals for resolving matters given my early views, which now appear in this decision. I thank the Council for responding positively. And, following further contact with both sides, to address the fault and resulting injustice I have identified, the Council agreed (within 28 days of this decision):

• To send Mr X a written apology and £250 in recognition of his time and trouble arising from its failure both to send timely and effective responses to his letters.
• To write to Mr X confirming if the concrete blocks must be removed and, if so, proposing how and by when to achieve their removal.

22. To address the wider issues raised by Mr X’s complaint, the Council also agreed:

• (Within three calendar months of this decision) to review how its Highways Department communicates with residents. (The review should include publishing time targets for the Highways Department to respond to residents written correspondence. The review should also aim to improve information sent to residents about alleged obstructions so it is clear what land/obstacles the Council is referring to.)
• Within 10 working days of completing the review, to send information to Highways officers about its results, including time targets for providing written responses on residents’ correspondence.

23. The Council further agreed to provide the Ombudsman with evidence that it complied with the recommendations at paragraphs 21 and 22 within four months of the date of this decision.

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Final decision

24. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs to 21 to 23.

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Investigator's decision on behalf of the Ombudsman