Summary: Mr C complained about the Council’s response to various highways matters which he says caused him avoidable distress and time and trouble. We have found fault in the Council’s complaint handling but consider the agreed action of an apology, £250 and a review of its procedure provide a suitable remedy.

The complaint

1. Mr C complains the Council:

1. officers shouted at him and acted inappropriately;
2. included incorrect information about what road works it was going to carry out on his street in 2020;
3. said it carried out a speed survey on his street in January 2021, but then failed to provide data from the survey;
4. failed to submit a Section 58 notice for his road and lied when it said it did not need one;
5. failed to submit and publicly advertise a road closure notice for roadworks on his road in 2020;
6. failed to respond to a freedom of information request he submitted about the drains running into residents gardens;
7. shows favouritism to some members but ignores his local elected independent councillor;
8. failed to replace the safety barriers outside the nearby school after they were damaged;
9. failed to follow up on the faults the members of the public are reporting online and lied about sending officers out to check them;
10. failed to follow its own complaints procedure;
11. failed to publish the public consultation for speed cushions; and
12. blacklisted Mr C and fails to respond to his emails.

2. Mr C says that dealing with the Council has caused him severe stress and numerous sleepless nights. He would like the Council to apologise for its faults and to make service improvements to ensure its faults do not reoccur. He would also like the Council to carry out the road works it committed to in 2020.

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What I have investigated

3. I have investigated items c, i, j and l above. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not 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))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. If we are satisfied with an organisation’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

10. I read the papers provided by Mr C and the notes of his telephone discussion with a colleague. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Item (c) speed survey

11. The Council said that in January 2021 it carried out a speed survey on Mr C’s Street.
12. The Council has confirmed to the Ombudsman that a speed survey was completed. However, it was commissioned by Cumbria Police.
13. The Council has provided details of the survey and confirmed the survey was provided to the northern Casualty Reduction and Safer Highways (CRASH) Group and discussed at their meeting in April 2021.
14. I do not consider any misunderstanding here has caused Mr C a particular injustice requiring the further involvement of the Ombudsman.

Item (i) failure to follow up on reported faults

15. The Council has explained that at the time of Mr C’s complaint, all reported defects or enquiries came into the Highways Service using its Hotline number or by using the ‘self-service’ system. The ‘self-service’ system was a way to report a highways issue that would be logged on the system. Once a defect or enquiry was entered onto the Highways Information Management System (HIMS) it was triaged and directed to the member of staff responsible. The Council says that once the issue was registered as completed the Highways Team should provide a written response to the service user to acknowledge this. The Council notes that some reported issues will not meet its ‘Highways Inspection’ policies for action but may be designated as being considered for future works.
16. In relation to Mr C’s complaint the Highways Team were due to visit the road to undertake resurfacing works involving planing off the surface, adjusting ironwork and surfacing. This meant the issues were designated as ‘Future works’ due to the Council having a planned maintenance scheme.
17. The Council further explains that since Mr C’s complaint it has launched a new system Highways Information Asset Management System (HIAMS) and new processes for public concerns and enquiries.
18. The Council has provided details of inspections between November 2020 and the end of February 2021 which included a routine visit on 20 November when the route was walked and on 1 December 2020 when a condition survey video was taken. There followed two inspections in February. On 1 February an ad-hoc inspection was completed which included a walked inspection with photographs taken and a drive of the section recording a video to update the condition information. This ad-hoc inspection identified two safety defects which were both raised as 20 working day repairs with the repairs being completed on 24 February within the repair timescales.

19. The Council says Mr C also reported a pothole on his road several times between February and July 2021. The Council has confirmed this pothole was checked and measured on 13 July and was 16mm in depth and so was not considered a safety defect as the investigatory level for a carriageway defect is 40mm.
20. Mr C also raised concern about the height of the existing speed cushions and general issues about road safety. The Council says the section of Mr C’s road that is subject to traffic calming through the use of speed cushions was not included in the scope of the resurfacing works in 2020/21 although they were measured to check they were within the relevant tolerances and found to be of an average height of 75mm.
21. However, the wider road safety concerns were noted and further investigated by the Council’s Traffic team which proposed additional speed reduction measures in January 2021. In the 2021/22 financial year Highways secured funding to carry out “phase 2” of the resurfacing works on Mr C’s road, which covered the length of road with the speed cushions in question. As part of these resurfacing works the Council renewed all existing speed cushions as well as installing the additional measures. Due to practicalities on site one proposed speed table was replaced with two speed cushions at the same location. The Council has provided a plan showing the location and specification of all the speed cushions.
22. The Council has explained the Highways Service has been working towards the introduction of an automated method of recording site visit information and details relating to site notes, change amendments to orders and general change and record control. Although there is a paperwork system in place the Council has been working on the implementation of a ‘Works ordering module’ within its current system HIAMS. The Council says this work is in its advanced stages and now with User testing taking place from 1 August 2022 for a 4 week period with immediate service release following a 2 week User Acceptance Testing (UAT) feedback process. The module allows staff to maintain an up-to-date site record of all issues with the site and allows for the downloading of notes or allows engineers to populate change and record control boxes to ensure that all aspects of the site information and supervision is captured.
23. The Council has accepted that the works in Mr C’s road should have been better communicated and agreed with residents and more care taken to ensure clear and accurate statements were provided. The Council accepts that the lack of clarity about competing priorities has caused confusion and led to complaints and has said it would like to apologise for the explanations provided which have fallen short of its own expectations.
24. The Council has provided the Ombudsman with details of some of the site visits and actions it has taken. Mr C has not identified which particular reported fault(s) he considers were not dealt with in accordance with the Council’s procedure at the time or which site visits he disputes. In the absence of specific information and in the light of the new reporting and record management systems above and the Council’s apology I do not consider there is sufficient benefit in the Ombudsman investigating this matter further.

Item (j) complaint procedure

25. Mr C says the Council failed to follow its complaints policy when it was considering his complaint. In particular, he says the Council took too long to respond to him and failed to address all the points raised.
26. Mr C received a letter sent to all residents on his road in October 2020 about works. Mr C says he contacted the Council to try and get some further information without success. Mr C then spoke to an officer on site. Mr C was not happy with the officer’s response and complained to the Council about this and other highway matters in early October.
27. The Council responded to Mr C and apologised for the response he had received from the officer on site and provided information about the other issues he had raised. Mr C remained unhappy with the Council’s response and there followed a further exchange of correspondence during October.
28. The Council sought a telephone call to discuss the remaining issues towards the end of October but Mr C explained in early November that he was preparing a file of information for the Council’s attention and it would not be useful to hold a discussion before it had received this document. The Council sent a reminder to Mr C for the information in early December.
29. The Council received Mr C’s document on 24 December which consisted of 84 pages and was a mix of complaints, questions and commentary. The Council sent a holding reply to Mr C during January 2021 and discussed the complaint with him in early February. The Council provided an estimated timescale for providing a full response to Mr C by early April. The Council provided a substantive response to Mr C in early April. There is some delay here but in the context of the complaint submission from Mr C I do not consider it excessive or to constitute fault.
30. Mr C remained unhappy with the complaint response and highlighted he had not received a reply to his complaint about the conduct of a committee meeting held on 1 March 2021 or his Code of Conduct complaint about a Councillor of 4 March.
31. The Council confirmed on 19 April that it had escalated the complaint to the review stage of its complaints procedure and would allocate an officer in a couple of days.
32. The Council provided a reply to Mr C on 14 May about the Code of Conduct matters and concluded there had not been a breach of the Code and proposed no further action. Mr C contacted the Council towards the end of May as he remained unhappy with the response. The Council sent a further reply to Mr C in early July and apologised for the delay which had been due to annual leave. The Council confirmed it did not propose any further action and would not correspond further on the same matter.
33. In relation to Mr C’s corporate complaint, the Council had sought a senior manager independent of its Highways team to carry out the complaint review during April and May without success. The Council’s records show the matter was noted in June and July 2021 and again in March 2022 to show the case was still awaiting allocation to a review manager. There is no evidence Mr C was kept informed.
34. The Council has accepted there was a clear breakdown in communication with Mr C and it should have been in regular contact about the delays and actions being progressed. The Council has explained its response was affected by staff changes during this period. This delay and failure to keep Mr C informed is clearly unacceptable and constitutes fault.

Item (l) blacklisting and failure to reply to emails

35. The Council has confirmed that its Complaints Team have no record of the Council’s Unreasonable Customer Policy (UCP) being implemented with regard to Mr C. This is the policy that is implemented if a decision is made to restrict communications with a service user or customer.
36. Mr C has provided details of several emails he says did not receive a reply. Some of these exchanges relate to information requests for which Mr C is aware the most appropriate route would be the Information Commissioner and others may not have required a response. When viewed within the significant level of correspondence between the Council and Mr C I do not consider the occasional failure to reply to an email constitutes fault causing a significant injustice that warrants the further involvement of the Ombudsman.
37. Based on the information provided, I have seen no evidence that Mr C’s correspondence is being restricted or routinely ignored.

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Agreed action

38. The Council will complete the following action to provide a suitable remedy to Mr C:
1. write to Mr C and apologise for the failure to provide him with a reply at the review stage of its complaints procedure and for failing to keep him updated within one month of my final decision;
2. pay Mr C £250 for his time and trouble in making his complaint within one month of my final decision; and
3. review its complaints procedure and resources to ensure a timely response can be provided at all stages and complainants are kept informed where this is not possible within three months of my final decision.

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Final decision

39. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Parts of the complaint that I did not investigate

40. I have not investigated the following items:

• (a) and (b) because the Council had already provided an apology to Mr C and the Ombudsman would consider this a suitable remedy;
• (d) and (e) as the Council had accepted it needed to make service improvements and further investigation by the Ombudsman would not achieve more;
• (f) because the Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

• (g), (h) and (k) as the Ombudsman would not be able to achieve a worthwhile outcome for Mr C and he had not been caused a significant injustice to warrant further investigation. Additionally, item (h) is likely to considered a late complaint as Mr C knew about the lack of barriers for more than 12 months and has not provided good reason for not bringing his complaint to the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman