Summary: We will not investigate this complaint about an obstructed highway. This is because there is not sufficient significant injustice to warrant our investigation.

The complaint

1. Mr Y complains the Council has failed to carry out its statutory duty to remove an obstruction, a gate across the road, in its area. He is unhappy at the time the Council took to respond to his complaint correspondence.
2. Mr Y says this means he has been unable to use the road in his car on summer evenings for access to the local Epsom Downs using this route.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y contacted the Council about a road, which was closed with a gate in the evenings, in September 2020. He asked the Council to require, as the Highway Authority, the road to be reopened to cars.
7. Mr Y says he emailed the Council in October 2020 before complaining to the Council in November 2021 that it had failed to respond to his emails or ensure the road was reopened.
8. The Council responded in at the end of November. It apologised for not having responded to Mr Y’s earlier emails and that he had needed to make a complaint. It then explained said the Council had only become aware of the missing legal order earlier that year, 2021. It agreed there was no legal basis for keeping the road closed at anytime and the local Borough Council had intended to make a legal order (now a Traffic Regulation Order, hereon referred to as a TRO) to enable the road closures overnight in the 1990s. It said that there was no record of the Borough Council having made the TRO required, although the closure had been in operation since the 1990s and had been generally accepted locally.
9. The Council said the matter had been passed to the Council’s local committee for the area in July, who had agreed that an order should be advertised to formalise the existing arrangement. It said preparations were being made to do this to allow any interested party to make a representation before a final decision would be made. It then said the overnight closure of the road would be kept in the meantime. It again apologised for its poor communication previously.
10. Mr Y responded in January 2022, complaining that the Council was not following its duty to protect the public’s right to use and enjoy the road and said the road was closed illegally.
11. The Council replied in February. It upheld Mr Y’s complaint. However, it said it had written to the local Borough Council to explain the proper process had not been followed in agreeing the road closure and in its view the gate should be opened until there were legal grounds for its closure.
12. The Council then said it had met with the Borough Council in June 2021, after the Borough Council asked the Council to make a new TRO, to allow the timed closure of the road. The Council said it was required to consider the TRO request and had decided to advertise the intended TRO in line with the process for making such orders. It said Mr Y could provide his comments and make representations of his views as part of the process and these would be considered before a decision was made.
13. The Council further said that while it did have a duty to prevent an obstruction of the highway, it was its policy to exercise its powers with discretion. It said that although the road closure remained in the evenings, it considered its actions in working with the local Borough Council to consider and consult the public on whether a formal TRO should be made was sufficient to address the issue.
14. The Council apologised for its handling of Mr Y’s complaint correspondence. It said it was in the process of restructuring this part of its service to ensure a better response time for member of the public. It then referred Mr Y to us.

Analysis

15. We provide a free service, but must use public money carefully. We must consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We do not start an investigation if we decide any injustice is not significant enough to justify our involvement.
16. Mr Y says his injustice is that he has been unable to use the road in his car on summer evenings for access to the local Epsom Downs using this route. Having considered maps of the area, Mr Y is not prevented from accessing other main routes which provide access to the local downs or to his property and he is not prevented from using the route at other times. While Mr Y may feel frustrated that he has been prevented from using the road in the evenings in summer, this is not significant enough of an injustice to warrant our investigation. Consequently, we will not investigate this complaint.
17. The Council also recognised it problems in responding to Mr Y’s earlier correspondence before he made his complaint. It apologised for this and said it is currently restructuring its service to deal with the issue. While Mr Y may initially have been caused some inconvenience at not receiving a response, the apology has acted to try to remedy this and any remaining injustice is not significant enough to warrant an investigation.
18. As we are not considering the substantive issue about the road closure, it is not a good use of public resources to consider Mr Y’s complaint about the Council’s handling of his complaint correspondence. Consequently, we will not investigate this complaint.

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Final decision

19. We will not investigate Mr Y’s complaint because there is insufficient injustice to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman