Summary: We will not investigate this complaint about scaffolding on the highway. There is insufficient evidence of fault in how the Council considered Mr X’s concerns. Any injustice Mr X experienced is also not significant enough to justify investigation by the Ombudsman.

The complaint

1. Mr X complained about the Council’s response when he reported a neighbour’s unlicensed scaffolding. Mr X told us the Council did not respond to his queries and did not take any action to enforce against the person responsible. Mr X said he was concerned the correct process was not followed when the Council originally granted the scaffold license.
2. Mr X said the scaffolding was obstructing the highway, restricting vehicular access to his property. He wanted explanations and information.

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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 injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X reported scaffolding to the Council, as he said it obstructed the highway. The Council considered Mr X’s concerns. While it could not provide him much detail of its actions, it indicated it had addressed the matter informally with the person responsible for the scaffolding and that they were engaging appropriately. It said it was considering whether the existing scaffold could be brought back into compliance through appropriate licensing, or whether steps would need to be taken to have it removed.
8. Councils have discretion about how they deal with obstructions to the highway, and they are expected to begin by discussing the matter with the person responsible. Councils have powers to take more formal enforcement action where such informal actions are not sufficient. However, the Council explained in this case why it had not done so. There is insufficient evidence of fault in how the Council considered its options.
9. The Council also explained to Mr X that while the scaffolding partly restricted access, there remained sufficient space to allow vehicular access. We will not normally investigate a complaint unless there is good reason to believe that the complainant has suffered significant personal injustice as a direct result of the actions or inactions of the service provider. This means that we will normally only investigate a complaint where:
• the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the service provider, or
• there are continuous and ongoing instances of a lower level injustice that remain unresolved over a long period of time.
10. Mr X’s injustice is not significant enough to meet this threshold, and it is not therefore proportionate to investigate this complaint, including the original approval of the scaffolding license.
11. The Information Commissioner is the body best placed to consider how organisations respond to Freedom of Information requests. Mr X requested a copy of the plans the Council originally approved for the scaffolding, information about the action it was taking regarding the unlicensed scaffolding and a copy of its enforcement process. Should he be dissatisfied with the Council’s response to these requests, it is open to him to escalate the matter to the Information Commissioner. There is not a reason for us to consider the matter instead.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in how the Council considered Mr X’s concerns, and any injustice Mr X experienced is also not significant enough to justify investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman