Summary: We will not investigate this complaint about the Council’s consultation for a parking permit scheme because there is not enough evidence of fault by the Council. We will not investigate Mr X’s complaint about the Council’s failure to properly maintain the road because it would be reasonable for him to take the matter to court.

The complaint

1. Mr X complains the Council has wasted public money introducing a parking permit scheme for residents which does not improve parking issues affecting his road. He says the Council failed to properly consult on the scheme and has not addressed his concerns about the state of the road outside his property.
2. Mr X wants the Council to cancel the parking permit scheme and repair the road.

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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 not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, 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, or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), section 34(B))

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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

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

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My assessment

Highway maintenance

7. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
8. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
9. The Ombudsman cannot interpret the law to say the Council has failed to fulfil its duty but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow this process.

Parking permit scheme

10. Councils may decide to introduce parking restrictions or permit schemes to address parking issues in their area. There is no legal requirement for informal consultation to decide how a scheme will look but some councils may carry it out to ensure they understand the issues faced by residents and whether they support the changes proposed.
11. The Council confirms it consulted informally with residents on two separate occasions and fed the results of the consultation into the scheme it has now implemented. It also formally consulted as part of the process for making the Traffic Management Order (TMO) which provides the legal basis for the scheme.
12. Mr X disputes the Council’s claims of consultation but the Council has provided him with evidence of its findings and it is therefore unlikely we could say it did not take place. The Council has ultimately decided there are good reasons to proceed with the scheme and we cannot say it must cancel it. The only way to achieve this outcome would have been by challenging the TMO at the High Court, including on the grounds that it failed to formally consult with residents as required.
13. I appreciate Mr X is unhappy vehicles are still parking on the road and causing issues for residents but the Council cannot be present to penalise parking contraventions at all times. It has provided details of how to report any parking issues and this provides Mr X with a suitable way forward.
14. 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

15. We will not investigate this complaint because there is not enough evidence of fault by the Council and we cannot achieve the outcome Mr X wants. If Mr X wishes to pursue his concerns about the state of the road it would be reasonable for him to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman