Summary: Mr R complains on behalf of a residents’ association that the Council has installed a crossover on a footpath which is unsafe for pedestrians, the visually impaired, the elderly and other users of the path. He says this has caused injustice as those using the path are in danger of injury. Because the Ombudsman cannot reach the decision or the remedy Mr R wants whereas the Magistrates’ Court can, we have discontinued our investigation.

The complaint

1. Mr R complains on behalf of a residents’ association in the Council’s area. He says that the Council installed a dropped kerb crossover across a steep bank outside a residential property. He says the crossover is dangerous. He says:
1. This was dangerous for pedestrians and wheelchair and mobility scooter users as, in winter, it was slippery;
2. The Council ignored the fact that the slope exceeded the Highway recommendation of a 3% crossfall to footways; and
3. Ignored the Council’s responsibility under the Equalities Act 2010 and ignored two letters from Disability Croydon.
2. Mr R says this has caused injustice to residents who are at risk. He wants the Council to reinstate a level footpath and change Council policy to prevent further crossover drives being approved.

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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 we would find fault, or
• we cannot achieve the outcome someone wants, or
• 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 spoke to Mr R who then sent me photographs of the pavements in question. I then wrote an enquiry letter to the Council. I considered the evidence I had gathered and any relevant law and applied the Ombudsman’s guidance on jurisdiction.
7. Mr R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Council’s duties

8. Councils have a duty to maintain and repair highways in their areas at public expense. They must keep them safe for all users. (Highways Act 1980 s.41)

Magistrates Court powers

9. Where a member of the public believes that part of the highway is ‘out of repair’, they can apply to the Magistrate’s Court to have it repaired. The meaning of ‘out of repair’ is that it is dangerous in some way.
10. Those wishing to make such an application must first serve a notice on the authority asking it to accept its duty to maintain the area in question. If it accepts that it is responsible, the person can then apply to the Magistrates Court for an order requiring it to repair it. If the Magistrates agree that it is out of repair, they will issue an order requiring the authority to repair it. (Highways Act 1980 s.56)

What happened

Background

11. In February 2017, a developer received planning permission for a property on a residential street in the Council’s area. The development included building a second house in the garden of the existing property.
12. Mr R represents the street’s residents association. In April 2017, he wrote to the Council saying the association had heard that the developer had permission for a parking space in House A’s front garden and would, therefore need to install a drive from the parking space to the road. This drive would have to cross over a footpath and would be likely to make it dangerous for residents, particularly, the visually impaired, the elderly, mothers with buggies, wheelchair users and pedestrians.
13. The driveway was built and Mr R considered it dangerous. He pressured the Council to carry out remedial works. It did so but Mr R says the crossover is still dangerous. He has come to the Ombudsman asking us to require the Council to carry out further works to make it safe and to change its relevant policy so that it does not grant any further planning permissions for similar crossovers.

Analysis

14. I have decided to discontinue this investigation because I cannot reach the conclusions or provide the remedy Mr R wants and there is another body better placed to investigate the complaint.
15. I cannot make a decision about the safety of the pavement in question. Mr R says it is dangerous. The Council says it is safe. The Ombudsman is not an expert body. We do not generally commission expert reports. We cannot therefore say who is right.
16. Even if I could find the pavement to be unsafe, I could not provide the remedy Mr R wants. The Ombudsman cannot require the Council to alter the crossover. Nor can we require the Council to change its policy to prevent further crossovers as Mr R also wants. Further the Council has already stated it intends to review its relevant policies.
17. The Magistrates Court, however, has power to require councils to carry out works to improve the highway if the magistrates agree that the highway, (which includes the footpath) is ‘out of repair’. It is therefore better placed to give Mr R the remedy he wants.

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Final decision

18. Having looked at the evidence and considered representations from Mr R and his MP, I have decided to discontinue my investigation.

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Investigator's decision on behalf of the Ombudsman