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Devon County Council (20 007 378)

Category : Transport and highways > Other

Decision : Not upheld

Decision date : 23 Mar 2021

The Ombudsman's final decision:

Summary: The Council was not at fault for removing Mr and Mrs B’s traffic cone from outside their home, or for its consideration of their allegations about the behaviour of its highways officer, who removed the cone. It looked into their allegations but decided the officer’s behaviour did not justify disciplinary action. There was no fault in how the Council made this decision, so we cannot question it.

The complaint

  1. The complainants, whom I refer to as Mr and Mrs B, complain that the Council removed a traffic cone, belonging to them, from outside their property.
  2. Mr and Mrs B also say they were treated very poorly by the highways officer who removed the cone. They say he shouted at them, and was rude and sarcastic. They say Mrs B, who has heart problems, was left very shaken and upset by the encounter.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. (Local Government Act 1974, section 34(3), as amended)
  2. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), 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

  1. I considered information from Mr and Mrs B and the Council. All parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

  1. The Highways Act 1980 says a person who wilfully obstructs free passage along a highway, and has no lawful authority or excuse to do so, has committed an offence and is liable to a fine.

What happened?

  1. On a regular basis through most of 2019 and 2020, Mr and Mrs B placed a traffic cone at the edge of the road outside their property, in order to give a supermarket delivery van somewhere to park when it was delivering their shopping.
  2. In mid-October 2020, after Mr B had put the cone out, a Council van drove along their street, stopped, and an officer removed the cone.
  3. Mr B challenged the Council officer who had taken the cone, but the officer refused to return it. Mr B says the officer was sarcastic, rude and threatening. He says the officer’s colleague shouted out, “get a blue badge and we’ll paint a white line round you”.
  4. Mr B says Mrs B was “shaking and sobbing for 2 ½ hours” after the encounter. He complained to the Council about its officer’s conduct, and asked it to return the cone.
  5. The Council responded to Mr B’s complaint, and said he was not allowed to obstruct the highway or ‘reserve’ space on it – and, under section 137 of the Highways Act 1980, anyone who wilfully obstructs free passage along a highway is liable to a fine. It said any future obstructions to the highway would also be removed.
  6. The Council says it spoke to the officer named in Mr B’s complaint, but did not consider Mr B’s description of the officer’s behaviour to amount to a disciplinary matter. However, it responded to Mr B, and said it understood that being the subject of enforcement action was not a pleasant experience. It apologised “if you considered our [officer’s] behaviour anything other than cordial and informative”.
  7. Mr and Mrs B approached the Ombudsman and said they were dissatisfied with the Council’s response. They said the officer had caused Mrs B great distress. They said they need the cone back so the supermarket delivery van can park outside their property when it delivers their shopping.

My findings

  1. I cannot find fault with a council’s decision simply because a complainant disagrees with it. I must consider whether there was fault in how the decision was made. If there was no fault, then I cannot question the decision.
  2. The Council explained to Mr and Mrs B why it removed their cone, and its explanation – and description of the relevant law – appears neither incorrect nor obviously unreasonable. Because of this, I have found no fault with the Council for the removal of the cone.
  3. Although I cannot undertake disciplinary investigations – we find fault with councils, not individuals – I have considered whether the Council properly looked into Mr B’s allegations against its officer.
  4. The Council says it spoke to the officer following Mr B’s complaint, but, after doing so, decided the behaviour Mr B described did not amount to misconduct, and it did not take further disciplinary action.
  5. I appreciate that Mr and Mrs B’s view of the encounter is different to the Council’s, and is not for me to question their experience. However, it is only my role to look at the process the Council followed, not to decide whether its officer’s behaviour was acceptable or not.
  6. Given that the Council spoke to the officer involved, looked into Mr B’s allegations and has explained its decision, there was no fault in how it considered the complaint. Because of this, I cannot question the Council’s decision not to take disciplinary action.
  7. I note that the Council still has possession of Mr and Mrs B’s cone, and they want it back. However, I do not accept that they need it for supermarket deliveries, and, if they put it out again, the Council will likely just remove it again. So their injustice from no longer having the cone is not significant enough to justify further consideration of whether the Council should return it.

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Final decision

  1. The Council was not at fault for removing Mr and Mrs B’s traffic cone from outside their home, or for its consideration of their allegations about the behaviour of its highways officer, who removed the cone.

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Investigator's decision on behalf of the Ombudsman

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