Summary: The Ombudsman will not investigate this complaint about the Council asking the complainants to remove an obstruction from the footway outside their home. It is unlikely he would find evidence of fault by the Council and the courts are better placed to decide the matter if the Council takes enforcement action.

The complaint

1. The complainants, who I refer to here as Mrs B and Mr C, have complained the Council says they must remove an obstruction from the footway outside their home. Mrs B and Mr C say they are not responsible for the obstruction but the Council will not accept their evidence.

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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.
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 would find fault; or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered what Mrs B and Mr C said in their complaint and discussed it with their representative. I have also considered background information provided by the Council.

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What I found

Background

6. Section 143 of The Highways Act 1980 (as amended) gives the Council powers to serve a notice requiring the removal of a structure from the highway. It also allows the Council to remove the structure and ‘recover expenses reasonably incurred’ from ‘the person having control or possession of the structure’.

Analysis

7. The Council believes Mrs B and Mr C should remove a structure consisting of earth and bollards from the highway outside their home. It has asked them to remove it and says it will consider taking enforcement action if they do not.
8. Mrs B and Mr C dispute they are responsible for the structure. They have also referred the Council to damage to a grass verge caused by a third party, but this does not relate directly to the structure.
9. I consider it is for the Council to consider any evidence and decide what weight to give to it. While Mrs B and Mr C disagree with the Council’s conclusion, I have not seen anything to suggest fault in how the Council has considered the matter. Without evidence of such fault, we cannot question the Council’s decision.
10. Further, if Mrs B and Mr C do not comply with the Council’s request, it is possible it will serve a formal notice on them. If it should remove the structure and take action to recover its costs from Ms B and Mr C, they can present any evidence to the court.

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Final decision

11. I have decided we will not investigate this complaint. This is because we are unlikely to find fault by the Council and the courts are better placed to decide the matter, if the Council takes action against Mrs B and Mr C.

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Investigator's decision on behalf of the Ombudsman