Summary: We will not investigate Mr X’s complaint about the Council’s refusal to take action to remove objects he says are obstructing the public highway. If Mr X believes the Council is responsible for the injuries he suffered when he fell of his bicycle it would be reasonable for him to take the matter to court. It is unlikely we would find fault in the Council’s decision not to remove the objects.

The complaint

1. The complainant, Mr X, complains the Council has failed to remove an obstruction from the highway as required by the Highways Act 1980. He suffered personal injury when he fell on the obstruction and still experiences pain from the incident.

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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’. 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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

3. 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)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I reviewed Mr X’s complaint and the Council’s responses. I shared my draft decision with Mr X and considered his comments.

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What I found

6. In 2020 Mr X fell off his bicycle onto a series of objects he believes are on the highway verge. He contacted the Council to complain about the objects and on the Council’s advice he made a claim to its insurance team. The Council declined Mr X’s claim as it disputed liability for his injuries. It says it is unclear who owns the land on which the objects are located and that it is likely Mr X would have suffered similar injuries were the objects not there. It does not consider action necessary to remove the objects as they have been there for more than 10 years without causing any issues.

Personal injury

7. Mr X’s injustice lies in the injury he sustained when he fell off his bicycle. If he believes the Council is responsible for this, and that it should pay him compensation, it would be reasonable for him to go to court. The courts are better placed to decide who is liable for Mr X’s injuries and the amount of any compensation he should receive.

Removal of the objects

8. Mr X is unhappy with the Council’s consideration of his complaint and his request to remove the objects. He believes they are dangerous and serve only the interests of his neighbour. He says the Council misadvised him about its actions following a previous report about the objects and states it has a legal obligation under the Highways Act 1980 to remove them.
9. Mr X refers to Section 137 of the Highways Act 1980, which makes it an offence to obstruct free passage along a highway, but the Council disputes both that the objects are on the highway and that they obstruct free passage. It has therefore declined to take further action. It is not for us to seek to interpret the law or to decide disputes about land ownership; the Council has explained how it reached its decision and it is unlikely we would find fault in this.
10. Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

11. We will not investigate this complaint. This is because Mr X’s injustice stems from his bicycle accident and if he believes the Council is responsible for his injuries it would be reasonable for him to go to court. It is also unlikely we would find fault in the Council’s decision not to take action to remove the objects.

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Investigator's decision on behalf of the Ombudsman