Summary: We will not investigate this complaint about the Council asking the complainant to cut back vegetation along his boundary. There is not enough evidence of fault causing him a significant injustice, it is reasonable to expect him to use the court remedies available to him, and we would not look at the complaints process on its own.

The complaint

1. Mr X complains about the Council sending him an inappropriate and ill-founded letter asking him to cut back overhanging vegetation along a road, particularly as he says the Council needs to address its own responsibilities at the same location.

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The Ombudsman’s role and powers

2. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint.

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

3. In relation to the first bullet point above, our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
4. And in relation to the second and third bullet points, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means 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. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
5. The law also 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)
6. Finally, 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

7. I considered information provided by Mr X. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council as a highway authority has a duty under the Highways Act 1980 to ensure the public highway is maintained and free of obstacles, and it has powers to instruct property owners to cut back vegetation or remove plants which overhang or encroach on the highway boundary.
9. Following a report of overgrown vegetation, the Council inspected the area and concluded some intervention was required. Letters were sent to the properties thought to be responsible, including Mr X.
10. The letter advised him that vegetation growing from his property was obstructing the carriageway, and asked him to cut it back within 14 days. It also invited him to make contact if he needed to discuss the matter further. In its subsequent complaint response, the Council noted the unusual road markings at the location, and clarified that as the vegetation was deemed to be encroaching into the highway, the same intervention as previously requested was still required.
11. I appreciate Mr X may disagree that vegetation on his land was obstructing the carriageway/highway. But the Ombudsman is not an appeal body, and we cannot question the professional judgement of an officer, nor the merits of a decision if there is no evidence of fault in the process. Here, the Council checked the highway, as we would expect, before writing to Mr X, and has clarified its position in the subsequent complaint response.  As such, I find there is not enough evidence of procedural irregularity to question the Council’s decision.
12. Similarly, I understand the Council has inspected some nearby District Council land on two occasions, and assessed whether any vegetation is overhanging the highway. It was for the Council to decide whether further action was necessary, even if Mr X disagrees with the decision made.
13. And whilst I acknowledge the Council’s letter may have caused Mr X some upset, it did not constitute a formal notice, and has not resulted in any formal enforcement action yet. I therefore do not consider any injustice caused to Mr X is significant enough to justify pursuing the matter further.
14. If the Council does decide to serve a formal notice under section 154 of the Highways Act 1980, Mr X may appeal against it in the magistrates’ court. The restriction detailed in paragraph 5 above would therefore apply.
15. Likewise, we normally take the view the courts are in the best position to decide whether a local highways authority has complied with its statutory duty to maintain a highway. So, if Mr X believes the Council has failed to properly maintain the sleepers at the back of the hardened verge, it seems reasonable to expect him apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980, requiring the Council to carry out works.
16. And as we are not investigating the substantive issues being complained about, it would not be a good use of our resources to pursue any concerns about the Council’s complaint process in isolation.

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Final decision

17. We will not investigate Mr X’s complaint because there is not enough evidence of fault causing him a significant injustice, it is reasonable to expect him to use the court remedies available to him, and we would not look at the complaints process on its own.

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Investigator's decision on behalf of the Ombudsman