Summary: We will not investigate this complaint about matters related to a road closure. The underlying substantive issues are for the courts and, in that context, investigating the Equality Act, communication and complaint-handling points would be disproportionate and unlikely to achieve a meaningful result.

The complaint

1. Mr and Mrs X complain about the Council’s handling of matters related to a road closure. In particular, they say the Council did not meet its Equality Act 2010 duties, did not communicate properly and did not handle their complaint properly. They say this has caused inconvenience and a loss of trust.

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The Ombudsman’s role and powers

2. We can decide whether to start an investigation into a complaint within our jurisdiction. 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 may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. 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

4. I considered information provided by the complainant and copy correspondence from the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council closed the road outside Mr and Mrs X’s home as it judged the road was unstable due to a landslip. The Council accepts it is responsible for repairing the road. However, it believes the problem with the road stems from the subsoil under the highway, which it says Mr and Mrs X own. So the Council says Mr and Mrs X must repair the subsoil before the Council can repair the road. The Council has had contact with Mr and Mrs X’s insurers about this.
7. Mr and Mrs X say barriers the Council put on the road obstruct their access to land they own near their home. The Council says the barriers are moveable so Mr and Mrs X can access the land at their own risk.
8. Mr and Mrs X can apply to the magistrates’ court for an order for the Council to repair the road. (Highways Act 1980, section 56) They and the Council have already corresponded about this, although I understand court proceedings have not started. I consider it would be reasonable to expect Mr and Mrs X to use this right if they want the Council to have to repair the road, since the court can consider each party’s arguments and, if it sees fit, make a binding order with a timescale.
9. Any dispute about the extent of Mr and Mrs X’s and the Council’s respective responsibilities for repairs to the road surface or subsoil is also most appropriately a matter for the courts if the parties or their insurers cannot reach agreement. 
10. Any dispute about whether the Council is wrongly obstructing access to Mr and Mrs X’s land is also a matter on which Mr and Mrs X can go to court. It is more appropriate for the courts than the Ombudsman to decide such matters.
11. Therefore the restriction in paragraph 3 applies to the points above. I consider it would be reasonable to expect Mr and Mrs X to take court action on those points, so we shall not investigate them.
12. Mr and Mrs X say the understand the Ombudsman might not be able to deal with all their concerns, but they would particularly like the Ombudsman to deal with their concerns about the Equality Act 2010 and the Council’s complaint-handling.
13. Mr and Mrs X argue the Council has not properly considered its responsibility under the Equality Act 2010 regarding the road closure. They say the closure particularly disadvantages their family due to health conditions. I understand this point. However, the question of whether the Council properly considered equality matters is secondary to the main issue affecting Mr and Mrs X, namely the road closure. For the reasons I have given, we shall not investigate that main issue. That means we will not be able to achieve anything in terms of having the road repaired and reopened. Those matters are ultimately for the courts. In that context, I consider it would be disproportionate to investigate the equality point.
14. Mr and Mrs X are also dissatisfied with the Council’s handling of their communications and formal complaint about the matter. It is not a good use of public resources to investigate complaints about communications and complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

15. We will not investigate Mr and Mrs X’s complaint because the underlying substantive issues are for the courts and, in that context, investigating the Equality Act, communication and complaint-handling points would be disproportionate and unlikely to achieve a meaningful result.

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Investigator's decision on behalf of the Ombudsman