Summary: Mr D complains the Council failed to adhere to an undertaking to consult him before carrying out works to the highway. He also refers to complaint handling issues. The Ombudsman has found some evidence of fault by the Council including a failure to consider the complaint. He has upheld the complaint and completed the investigation because the Council agrees to apologise to Mr D.

The complaint

1. Mr D says the Council gave him an undertaking, because of a complaint, to consult him about any future works to the highway near his home in 2019. He complains the Council failed to consult him about works carried out in November 2019. He also says the Council refused to consider his subsequent complaint.

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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. 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

4. I have considered the information supplied by Mr D. I asked the Council questions and carefully examined its response.
5. I have written to Mr D and the Council with my draft decision and considered their comments.
    

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What I found

What happened

Background

6. At the start of 2019 Mr D’s mother’s (Mrs X) neighbour reported flooding caused by surface water running off the highway. The Council decided the flooding was causing a nuisance and carried out works to the highway outside Mrs X’s home. Mr D complained to the Council in February. It accepted it had not informed him about the planned works and apologised. It said it would contact potential access users affected by planned works in advance. Mr D pursued his complaint and the Council confirmed it would engage and consult Mr D in advance of any future highway related drainage works in the area.

Events I have investigated

7. On 29 October the Council wrote to Mr D explaining it was due to carry out works outside Mrs X’s home. The letter set out the type of work, likely duration and start date in November. It gave contact details for an Officer. Mr D says he did not receive the letter. On 4 November Mr D contacted the Council that he had been told by another resident about the planned works and the Council had failed to consult him. The Council replied two days later. It said the works were minor and a formal consultation was not practical.
8. On 11 November Mr D asked the Council to consider his complaint about its actions in November. The Council told Mr D it had already considered the case and he should go to the Ombudsman. The works to the highway took place at the end of the month.

What should have happened

9. Under the Highways Act 1980 the Council has a statutory duty to maintain the highway. Where the Council considers a highway repair to be minor it will send out a notification letter to residents likely to be impacted by the works. The letter should include the type of work planned, likely duration and start date. There is no requirement on the Council to carry out a formal public consultation on minor works.
10. Under the complaints policy the Council can decide not to investigate a case if it deems the cost of an investigation is not justified, this can include where the Council has already responded to a complaint.

Was there fault by the Council

11. Mr D says the Council did not fulfil its undertaking to consult him about the works scheduled for November 2019. Having considered the evidence, I see the Council did follow the correct process. It sent Mr D a notification letter in line with its procedures. I understand Mr D may not have received the letter, but the Council is not responsible for the postal service and it has shown me the notification letter which satisfies me it was produced. Whilst there is no evidence of fault in this matter it may have been helpful for the Council to have better worded its undertaking to Mr D. The use of “consultation” caused raised expectations about the level of contact and engagement that Mr D would receive. The Council acknowledges this in its response to me.
12. In respect of the complaint handling I find the Council at fault. It told Mr D it had already considered his complaint earlier in 2019. That was not correct because Mr D was complaining in November about new events, specifically about the failure to comply with the consultation process. The Council could and should have taken that as an opportunity to clarify what it meant by consultation. Instead it told Mr D to go to the Ombudsman.

Did the fault cause an injustice

13. Mr D had to pursue his complaint to the Ombudsman because the Council would not consider it.

Agreed action

14. In order to remedy this complaint, the Council should consider sending Mr D a letter of apology for the fault identified above and to clarify what it means by consultation in respect of the future contact Mr D can expect. The Council should also check with Mr D as to which postal address he would like correspondence about this matter sent to.

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Final decision

15. I have completed the investigation and upheld the complaint because I have found some evidence of fault.

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Investigator's decision on behalf of the Ombudsman