Summary: Ms X complained the Council would not remove illegal stickers encouraging cycling and put correct signs on a piece of pavement often used by cyclists and pedestrians near where she lives. Ms X said it was dangerous and would lead to harm or accidents. Ms X also complained the Council delayed in responding to her complaint about the matter. The Council failed to keep accurate records, and to respond to Ms X’s complaint in good time. The Council has already taken appropriate action to remedy the frustration caused to Ms X and it has agreed to take action to improve its service.

The complaint

1. Ms X complained the Council would not remove illegal stickers encouraging cycling and put correct signs on a piece of pavement often used by cyclists and pedestrians near where she lives. Ms X said it was dangerous and would lead to harm or accidents. Ms X also complained the Council delayed in responding to her complaint about the matter. Ms X wanted the Council to remove the cycling stickers and erect the correct signs.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
4. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. If we are satisfied with an organisation’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)

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How I considered this complaint

6. I read the document Ms X provided and discussed the complaint with her on the telephone.
7. I considered the documents the Council provided in response to my enquiries.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant guidance in force at the time

9. The Department for Transport issued Local Transport Note 2/04 (September 2004) which sets out guidance for cycle and pedestrian schemes. It said pavements should generally be segregated with a physical marker between the cycle section and walking section where high flows of pedestrians or cyclists are expected and there is sufficient width available. It said the pavement might not be segregated where flow of pedestrians or cyclists are expected to be low or there is limited width available. This was the guidance in place when the Council was considering the use of the pavements in the development; there have been several updates to this guidance since 2004.
10. A traffic regulation order (TRO) can be used by a council to restrict or stop the use of the highway network. They aim to improve road safety and access to facilities. TROs are issued in line with the Road Traffic Regulation Act 1984 and the procedures are set out in the Local Authorities’ Traffic Orders (Procedure) Regulations 1996.

What happened

11. Ms X lives in an area that has seen significant development and construction over the last few years. The Council said the design and development of the residential area began in the early 2000’s. The Council became responsible for the highway in 2007 by highway adoption. The Council said it obtained TRO’s for the pavements in the development area at the time.
12. In the summer of 2022 Ms X was a pedestrian on a pavement in the development area. She states she was assaulted by a cyclist on the pavement and informed the police.
13. Ms X contacted the Council at the end of July 2022. She said she had been assaulted by a cyclist on the pavement in the development area because the cyclist believed it was a cycle path. Ms X said the pavement was not wide enough to be shared use and there were stickers on the lampposts that suggested it was a cycle path, but the highway plans said it was not. Ms X asked the Council to put up clear signs about who can and cannot use the pavement as she was worried about further incidents and accidents.
14. The Council responded to Ms X in mid-August 2022 and said it was currently unsure of the legal status of the pavement, as it could not find the relevant TRO, but it would continue to investigate and would update Ms X. It confirmed the stickers had no legal status. It asked Ms X to pinpoint on a map where the incident occurred.
15. Ms X states she tried to contact the Council again several times but received no response.
16. In December 2022 Ms X complained to her MP about her concerns of incidents between cyclists and pedestrians on the stretch of pavement. Ms X also complained that she had been trying to contact the Council but received no response. The MP forwarded the email to the Council and asked it to mark out the pavement as shared use for cyclists and pedestrians.
17. The Council responded to the MP and said on the information it had available it believed the incident happened outside a ‘shared use’ order area, meaning the cyclist should not have been on the pavement. It stated it had no plans to segregate the path as they were all intended to be shared use.
18. Ms X complained to the Council, she asked to remove the stickers and put up blue signs asking cyclists to dismount. She said someone was going to be hurt by a cyclist on the path as the stickers suggested it was a cycle path.
19. The Council responded to Ms X at the beginning of February 2023. It apologised for the delay in its response and the frustration caused to Ms X. It said:
• The stickers were from an old charitable scheme to encourage cycling. It had asked the charity to remove them and the Council would remove them if it did not do so.
• It was in the process of reviewing signed cycle routes and removing old signs where changes had been made.
• It was reviewing shared use signs to see if they were missing from the TRO plans.
20. The Council said it completed a site visit in February 2023 to assess the signs already in place.
21. Dissatisfied with the Council’s response Ms X complained to us.
22. The Council sent Ms X an update in March. It said it had completed its investigation. It said the pavement was shared use for both cyclist and pedestrians without segregation and was approved by its safety analysis team several years ago. It said the signs conformed with the regulations but as there was high usage it would benefit from additional signs which it was in the process of arranging. It apologised for the stickers and the confusion caused by them and said it would be taking imminent action to remove them.
23. A Council technician inspected the site in July 2023 and considered the safety on the stretch of pavement Ms X complained about. The technician decided that, to ensure safety of every user, it would install additional ‘shared use’ cycleway signs.
24. In response to our enquiries the Council said it had installed the shared use signs along the pavement at the end of September 2023. It said it had implemented additional marking at junctions to ‘substantially improv[e] visibility and deliver unambiguous guidance to both cyclists and pedestrians’.
25. The Council conducted a further site visit in November to remove the charity’s stickers. It said three were left behind as the Council Officer had insufficient solvent for their removal, and it would return to remove the final three.
26. In response to my enquiries the Council said it was unable to trace the relevant TRO for the pavement Ms X complained about. It said it would draft a service improvement plan for the Highway Department and Legal Orders team to ‘highlight the critical necessity of ensuring that TROs are consistently recorded, catalogued, and stored effectively’.

My findings

27. The status of the pavement was decided more than 15 years ago. This is significantly more than the 12 months we expect people to complain to us in. Although Ms X did not have cause to complain to us earlier, there is no good reason to investigate how the Council made its decision about the status of the pavement now. I have therefore not investigated the Council’s consideration of the status of the pavement in 2007, but have investigated how it considered the concerns Ms X raised in 2022 about the safety of the pavement.
28. The Council has said it cannot find a record of the relevant TRO. The Council should keep clear and accurate records, the failure to do so is fault. The Council has already set out the actions it will take to avoid the same fault occurring in the future, which is an appropriate action. The Council should provide us with a copy of the service improvement plan described in paragraph 26. I do not find the absence of the TRO record has caused Ms X an injustice for the reason explained below.
29. The Council considered Ms X’s complaint and conducted a safety evaluation of the stretch of pavement. It decided that additional signs were needed and has provided evidence that it has installed those signs. It has also removed most of the unofficial stickers. This is the outcome Ms X wanted to achieve. There was no fault in the Council’s actions. In the absence of the TRO covering that area, further investigation would not lead to a different outcome.
30. Ms X first raised her concerns with the Council in July 2022. Although the Council initially responded to Ms X, she then had to contact her MP to get a further response from the Council. The delay in responding to Ms X’s complaint was fault and caused her frustration. The Council has already apologised to Ms X for the frustration caused to her by its delay in responding to her complaint. This is an appropriate remedy and in line with our Guidance on Remedies.

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Agreed action

31. Within three months the Council will:
• finalise the service improvement plan to improve record retention for TROs; and
• remove the three remaining stickers from the stretch of pavement subject to Ms X’s complaint.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. I found fault causing injustice. The Council has already taken action to remedy the personal injustice caused to Ms X and has agreed to my recommendation to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman