Summary: Mr X complained about the Council’s policy on agreements for design and work on highway infrastructure for new developments. We will not investigate this complaint. This is because there is insufficient evidence fault which would warrant an investigation.

The complaint

1. Mr X says the Council’s policy of awarding design and works contracts to its in-house team is unfair on businesses such as his own which are unable to tender for the work. He says the policy may breach competition laws.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered all the information which Mr X submitted with his complaint. Mr X has been given an opportunity to comment on a draft copy of my decision.

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What I found

5. Mr X’s business is an architectural design company and he complained to the Council about its requirement that one of his clients signed an agreement under s.278 of the Highways Act 1980 for the design and construction of highway infrastructure for a development. He says that other Council highway authorities allow private consultancies to carry out design and works themselves after signing an agreement.
6. The Council told him that it uses its own design team and contractors for such works. This ensures that the work can be controlled within a timescale and that there is less chance of the contractor becoming insolvent and leaving an incomplete development. The Highways Act allows for outside contractors to make agreements with highway authorities but there is no duty for them to do so.
7. The council has an approach to use in house services for design and construction of highway works and the legislation permits it to choose who provides this service. If Mr X believes the approach to be unlawful, he would have to seek a determination in the courts. The Ombudsman has no authority to determine points of law.

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Final decision

8. We will not investigate this complaint. This is because there is insufficient evidence fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman