Summary: Mr X is a solicitor complaining on his client’s behalf. He says the Council has failed to respond to his letter before claim according to pre-action protocols. And that it refuses to repair a wall which Mr X says is dangerous. The Ombudsman will not investigate this complaint as Mr X can ask the Court to decide whether the Council is liable for repairing the wall.

The complaint

1. Mr X complains the Council took too long to respond to his letter before claim about a dangerous wall which he says is the Council’s responsibility.
2. He wants the Ombudsman to:
• order the Council to engage with him
• remind the Council of its duties
• order the Council follow the pre-action conduct protocols and to consider the terms of the Solicitor’s Regulation Authority’s code of conduct.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely further investigation will lead to a different outcome
• there is another body better placed to consider this complaint

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

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How I considered this complaint

6. I considered the information provided by Mr X. He had the opportunity to comment on the draft version of this decision.

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What I found

7. Mr X is a solicitor. His client, company Y, owns a sports and leisure club.
8. In July 2018 Mr X sent the Council a letter before claim advising it that he considered it to be responsible for repairing a boundary wall. He says the wall is dangerous and is at risk of collapse. If the wall collapses it will cause thousands of pounds of damage and is risk to passers-by.
9. Following correspondence, the Council advised Mr X in November 2018, that it does not accept the wall is dangerous under the terms of sections 77 or 78 of the Building Act 1984. But it would survey the wall to see if any remedial work is needed.
10. Mr X says following the survey the Council suggested remedial works which could be undertaken as part of planned maintenance before the end of the financial year. There has been no further progress.

Assessment

11. Mr X argues that the wall in question is part of the highway. The injustice he claims on behalf of his client is that the wall remains in a state disrepair and is at imminent risk of collapse. This leads me to consider section 56 of the Highways Act 1980. This says that a person may serve a notice on a highway authority requiring it to confirm that a roadway including footpaths, is a highway and that it is liable to maintain it. If the highway authority:
• disputes that it is liable to maintain the roadway; or
• if it does not respond within one month

the person may apply to the Crown Court for it to decide if the highway authority is liable for the maintenance. And, if it is, to put it in proper repair within a reasonable period. If liability is not in dispute, application may be made to a magistrate’s court.

12. Mr X asserts the boundary wall is part of the highway and is therefore the Council’s responsibility. As such, if he believes the highway is out of repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
13. Because he has this legal remedy, I will not investigate this part of the complaint.
14. Mr X also complains the Council’s legal department:
• has failed to follow pre-action protocols; or
• consider the provisions of the Solicitor’s Regulation Authority’s code of conduct
15. He wants the Ombudsman to order the Council to follow the pre-action conduct protocols and to consider the terms of the Solicitor’s Regulation Authority’s code of conduct.
16. The Ombudsman does not have the power to order the Council to comply with Mr X’s request. It is possible that we could ask the Council to apologise for the delay in dealing with Mr X, however, the Ombudsman would not normally consider it a good use of our limited resources to begin an investigation purely to obtain an apology. There is no other outcome that he could reasonably seek
17. I consider these specific concerns would be better addressed by the Legal Ombudsman or the Solicitors Regulation authority.

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Final decision

18. I will not investigate this complaint. The substantive issue is the repair of the wall. In the complaint to us Mr X stated that his client’s injustice is that the wall remains in a state disrepair and is at imminent risk of collapse. His client cannot carry out the requisite work as it does not own the wall.
19. However, Mr X can service notice on the Council that he intends to apply to the Court under section 56 of the Highways Act 1980. The Court can decide whether the Council is liable to maintain the wall and if so to set a timescale for any necessary remedial work.
20. In regard to his concerns about the alleged failure of the Council’s legal department follow pre-action protocols or consider the provisions of the Solicitor’s Regulation Authority’s code of conduct. This would be better addressed to the Legal Ombudsman or Solicitor’s Regulation Authority.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman