Decision : Not upheld
Decision date : 30 May 2018
The Ombudsman's final decision:
Summary: Mr X complains the Council has not prevented buses using a dangerous route. The Council is not at fault. A Commercial Company runs the bus route and the Council has no grounds to prevent it using the route.
- The complainant, whom I will refer to as Mr X, complains the Council has failed to prevent buses using a dangerous route.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’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)
- 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)
- 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)
How I considered this complaint
- I considered the complaint Mr X made and discussed it with him. I asked the Council for information and considered this.
- Mr X and the Council had the opportunity to comment on a draft version of this decision. I considered the comments received before I made a final decision.
What I found
- The Transport Act 1985 deregulated bus services. If a company proposes a route for a bus service, it applies to the Traffic Commissioners for a licence. Traffic Commissioners are not part of a council. Traffic Commissioners are not in the jurisdiction of the Local Government Ombudsman.
- Before 2017 a company made the application to the Traffic Commissioners first and the Traffic Commissioners decided if they wanted information from a council. From 2017 a company must give a council 28 days to scrutinise an application before applying to the Traffic Commissioners. In either case the Traffic Commissioners decide whether to grant the license. A council cannot prevent a company making an application, even if it has concerns. A company can ask for a public inquiry before the Traffic Commissioners decide an application. A company has a right of appeal if the Traffic Commissioners do not allow the route or impose conditions on it.
- A council’s duty as traffic authority is to co-operate with the Traffic Commissioners and provide any information they reasonably ask for. A council does not have a duty to carry out a risk assessment of a route a company proposes.
- It is the company’s duty to provide the Traffic Commissioners with accurate plans and descriptions of the route.
- Once a bus route has approval a council can try to influence a change in two ways. It can ask the Commissioners to impose a condition on the licence or it can make a traffic management order to prevent buses using the route. To consider either the Council must have evidence of the risk of not asking for a licence condition or imposing a traffic management order.
- A commercial operator (“the Company”) runs the bus route Mr X complains about. In 2015 the Company reviewed its services and introduced a route in the road Mr X lives on. Mr X says the road is not suitable for buses. He says there are dangerous corners and junctions and in places the road is so narrow buses mount the pavement. He says a bus nearly hit him when the bus driver came too far over a junction.
- Mr X and others told the Council their concerns about road safety. In response in May 2017 the Council’s Road Safety Auditor and Public Transport Officer made a safety assessment of the route. They found that although part of the road and one junction were narrow it was not an unsafe route. The Council considered it could not justify demanding removal of buses from the route.
- Mr X was not satisfied. The local Parish Council wrote to the Company and asked it to remove the service from the road. The Company replied saying this would end the bus service for other residents and could mean the service was no longer financially viable. The Parish Council undertook a survey to get residents’ views. The Parish Council then asked the Council to help it with a larger survey.
- The Council undertook a survey between 4 November and 4 December 2017 to see if residents wanted the route changed to a different road. The Council sent out 2,500 questionnaires but only got 226 responses. It found this 9% response rate too low a result to reach confident conclusions. It weighted the results by how often the responder used the bus. In doing so it showed that 56% of the responders preferred the other route.
- The Council wrote to Mr X to tell him about the survey results. It said it wanted to change the route and would ask the company to consider this before pursuing any legal process.
- The Council contacted the Company. The Company responded there were no safety reasons to move the route. The Company said changing the route would make the bus service less commercially viable and affect its long-term existence. It said the Council did not have the right to intervene in its commercial operations.
- The Council reconsidered. It considered a change in the route would disadvantage other residents and make public transport to some schools difficult. It decided this, with its safety audit, public response and the Company response meant it no longer supported a change in the route.
- The Council says it is considering more double yellow lines to prevent poor parking obstructing the bus.
- In response to a draft of this decision Mr X says the Council did not carry out a risk assessment or carry out safety work before it sent the 2015 application to the Traffic Commissioners. He wants the Ombudsman to revoke the licence and order the Council and Company to start the process again. He also says the safety assessment the Council carried out was not good enough.
- It is clear Mr X has genuine concerns about the safety of the bus route. However, what he asks the Ombudsman to do is not possible. The Ombudsman cannot revoke the licence. Only the Traffic Commissioners can do this.
- Mr X also believes the Council has powers and duties when it does not. It is too late to investigate what happened in 2015. I see no reason to accept a late complaint as Mr X has been aware of this route since then. Having said this, what happened during the application process in 2015 is not a complaint against the Council. In 2015 the Council did not see an application for a bus route before it went to the Commissioners, so it had no part in submitting the application for this route. I do not know if the Traffic Commissioners asked the Council for comments or what, if any, comments the Council provided. It was the company’s duty to provide accurate route information and the Traffic Commissioners role to decide the application.
- Mr X hopes that a new application with a safety assessment from the Council would lead to a different decision. I see no evidence of this. When Mr X complained to the Council about the route in 2017 it carried out a safety assessment and found no significant risks.
- The Ombudsman cannot tell the Council to now ask for a licence condition or apply for a traffic management order. These are decisions for the Council as the Highways Authority. The Ombudsman can only consider if the Council has followed a proper process and taken all relevant matters into account. If the Council has done this, the Ombudsman cannot ask it to do anything else. If it has not followed a proper process the Ombudsman can ask the Council to take a decision again.
- The Council is not at fault. The only grounds it has for asking the Traffic Commissioners to add a condition to the Company’s licence, or applying itself for a traffic management order, is if it has evidence of a safety risk. It does not have this. Mr X does not agree with the findings of the Council’s safety assessment. The Ombudsman has no power to criticise or comment on a decision the Council took properly. I have seen no fault in how the Council made the assessment. Professional officers undertook the assessment, considered relevant factors and gave reasons for their findings. The Council followed a proper process and the Ombudsman has no grounds to ask it to take this decision again. In any event, as the Council does not have evidence of risk, asking for licence conditions or a traffic management order is unlikely to succeed.
- The Council tried to help in other ways. It has carried out a public consultation and asked the Company to consider changing the route. The Company has refused. There is nothing the Council can do to insist on the change.
- The Council did say it wanted the Company to change the route and would try to take action if it refused. However, with further information and other views the Council changed its mind and decided not to seek a change in the bus route. I understand this has frustrated Mr X but a change of decision on receiving more information is not fault by the Council.
- There is no fault by the Council. It does not run the bus route and did not licence it. It has considered and investigated Mr X’s concerns and given reasons it cannot prevent buses using this route. I have completed my investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman