Summary: We will not investigate this complaint about a public highway. This is because the court is better placed to consider the issue and the tests set out in our Assessment Code are not met.

The complaint

1. Mr Y complained the Council failed to complete a stopping-up Order in the 1960s after it diverted a highway and have denied responsibility for this, or to correct the record.
2. Mr Y says this has led to his land, which he privately owns, being incorrectly record as a public highway, which has meant to carry out electricity works on the land he has needed to obtain a license, costing him £900, to work on the highway.

Back to top

The Ombudsman’s role and powers

3. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mr Y says the Council failed to complete a stopping-up Order when it diverted a public highway, on land he now owns, in the 1960s. Mr Y says this meant that when he needed to install electricity to the site in 2025, he was required to pay for a license under Section 50 of the Highways Act 1980, to be able to carry out the work on a public highway. Mr Y says the license cost him £900.
8. Mr Y says that the land is privately owned and is no longer a highway so in his view, he should have been able to carry out the work without the license. He says the Council wrongly failed to obtain the Order in the 1960s and this has led to him needing to pay for a license. It is his view that the Council should regularise the area by seeking a stopping-up Order, to end its status and his costs should be reimbursed.
9. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims which we cannot determine and we could not determine whether the Council has acted wrongly to deny responsibility or to refuse to change the records where there is a dispute. These are legal claims for losses which may only be decided by insurers or the courts. Consequently, any claim for damages, such as costs for a license, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts and the Council’s insurers.
10. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter. We will not investigate.
11. Further, if the Council’s action, not to obtain a stopping-up Order, this would have been done in the 1960s. The further away in time an investigation takes place from the events to be investigated, the more difficult it is to establish the material facts with reasonable confidence.
12. In this case, we would be seeking evidence from approximately 60 years ago, which is likely to have been destroyed largely and incomplete if any records remain. This means that there is a minimal prospect of us being able to reach a sound, fair and meaningful decision. We act impartially when considering complaints and do not take sides. As we would be unable to investigate fairly in this case due to the passage of time since the alleged fault occurred, we will not investigate this complaint.

Back to top

Final decision

13. We will not investigate Mr Y’s complaint because the court is better placed to consider the issue and the tests set out in our Assessment Code are not met.

Back to top

Investigator's decision on behalf of the Ombudsman