Summary: We will not investigate this complaint about road maintenance because the complaint is late without good reason to exercise discretion to investigate it now, we cannot achieve the outcome Mr Y is seeking and the courts are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to maintain the road he lives on, which belongs to the Council since he initially asked it to in 2020. Mr Y is unhappy with the Council’s lack of action in response to his complaint about the condition of the road.
2. Mr Y says the issue has taken up his time on and off over four years and is frustrating for him. He says he has to swerve around potholes which he believes are dangerous.

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The Ombudsman’s role and powers

3. 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)
4. We investigate 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 continue an investigation if we decide:

• 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, section 34(B))

5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y lives on a road he says is owned by the Council. However, the road is unadopted. This means that the Council, as the local highways authority, does not have a statutory duty to maintain the road, even if it may have responsibilities towards maintenance as a landowner.
8. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. The Ombudsman cannot decide which party has what responsibilities or duties over land, even where the Council is a landowner. These are legal issues which can only be determined by the courts. Consequently, the courts are better placed to consider this complaint as they can determine who is responsible for the repairs to the road and to what extent. We will not investigate.
9. As we cannot make the determination as explained above, we cannot, even if we investigated and found fault causing injustice, recommend the Council act in a private land matter. Therefore, we cannot achieve the outcome Mr Y is seeking and we will not investigate.
10. Further, Mr Y was aware of his reason to complain more than 12 months ago. It would have been reasonable for him to have approached us, if not in 2020, at an earlier date, within 12 months of his contact with the Council about the issue. Consequently, his complaint is late, and as he was able at times to correspond with the Council about the matter and therefore could have come to us, I do not have sufficient good reason to exercise discretion to investigate this complaint now. We will not investigate.
11. Mr Y is also unhappy with the response to his complaint about the road maintenance. However, as we are unable to investigate the substantive matter, it is not a good use of public resources to investigate how the council dealt with the complaint. We will not investigate.

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Final decision

12. We will not investigate Mr Y’s complaint because the complaint is late without good reason to exercise discretion to investigate it now and the courts are better placed to consider it.

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Investigator's decision on behalf of the Ombudsman