The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to take action against a pavement obstruction. We do not consider this has caused the complainant sufficient personal injustice to warrant an investigation. Also, we consider it is reasonable to expect the complainant to ask the Information Commissioner’s Office to consider their concerns about access to information.
The complaint
Mx X complains the Council refuses to ensure removal of a flower bed which is obstructing a pavement. They say this is a danger to those using the footpath as they must step into the road to avoid it.
The Ombudsman’s role and powers
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: 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)) 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.
How I considered this complaint
I considered information provided by Mx X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mx X complained to the Council that a business has blocked part of the highway (the pavement) with a raised flower bed. It also erected signs implying the pavement was private property.
The Council says it spent a considerable time corresponding with the legal representatives of the landowner.
It confirms the area of pavement is highway land. However, it says it will not take action to force the landowner to remove the flowerbed. This is because it has been in place for some years and there have been no recorded incidents or accidents at the site. The Council says it has asked the landowners to amend the signs to show the extent of the highway boundary.
Mx X is not satisfied with the Council’s decision. They say they do not use the pavement because they are concerned and intimidated by the ‘private property signs’ and because the flowerbed physically blocks the pavement. However, the Council has confirmed the pavement is highway land and has asked the landowner to change the signs. There is also an alternative pavement on the other side of the road.
The Ombudsman does not offer a right of appeal. The Council has decided not to require the removal of the flowerbed and it has explained why. Mx X lives some miles from the site and there is an alternative footpath on the opposite side of the road. I therefore considered they have suffered insufficient personal injustice to warrant an investigation into this matter.
Mx X also complains the Council has failed to provide information they have asked for. It is reasonable to expect them to refer the matter to the Information Commissioner’s Office (ICO). That is because this is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers, which the Ombudsman does not have, to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.
The Council acknowledges it has taken some years to fully investigate and respond to Mx X’s complaint and explained this is because it had to correspond with the landowner. We expect councils to respond to complaints according to their published complaints procedure. However, we consider it is not a good use of public resources to investigate complaints about complaint procedures only, if we are unable to deal with the substantive issue.
Final decision
We will not investigate Mx X’s complaint because: we do not consider they have suffered a significant personal injustice to warrant our involvement; and it is reasonable to expect Mx X to ask the ICO to consider their concerns about access to information.
Investigator's decision on behalf of the Ombudsman