Summary: The Ombudsman will not investigate this complaint that the Council wrongly believes there is an obstruction of the highway at the complainant’s former home. The complainant was aware of the central issue more than twelve months before she complained. Further, the courts will deal with the matter should the Council decide to prosecute the complainant or the current owner of the property under the Highways Act 1980.

The complaint

1. The complainant, who I refer to here as Mrs X, has complained the Council wrongly considers there is an obstruction of the highway at her former home. She has also complained on behalf of the current owner of the property, Ms Y.

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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. It says 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)
3. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we could add to any previous investigation by the Council; or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I have considered what Ms X said in her complaint and information she later provided. Ms X commented on a draft before I made this decision.
5. The Council also provided some background information including its response to a formal complaint made to it by Mrs X. I consider the Council has provided a full response and investigation would add nothing significant to what we know.

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What I found

Summary of events

6. In 2012, the Council wrote to Mrs X about a fence and bin store at the side of her home which it believed unlawfully obstructed the highway. Mrs X disagreed with the Council’s view and there was correspondence between her and the Council.
7. The Council reserved the right to prosecute Mrs X under the Highways Act 1980 if she did not remove the obstruction. Although it did not do this, it noted its view on its records.
8. The issue did not arise again until 2018 when Mrs X was selling the property to Ms Y. Mrs X says she sold the property on condition she pursued the matter with the Council on Ms Y’s behalf.

Analysis

9. In 2012 Mrs X knew the Council considered she had obstructed the highway and it might prosecute her if she did not remove the obstruction. Mrs X complained to us in 2019. Mrs X has argued her complaint is about the Council’s decision not to uphold her complaint in December 2018. However, I consider the restriction I describe in paragraph 2 applies and there is no exceptional reason we should investigate a complaint about this now.
10. Further, we cannot decide if there has been an offence under the Highways Act 1980; that is a matter for the courts. I consider the courts will deal with the matter should the Council decide to prosecute either Mrs X or Ms Y.

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Final decision

11. I have decided we will not investigate this complaint for the reasons given in paragraphs 9 and 10.

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Investigator's decision on behalf of the Ombudsman