Decision : Closed after initial enquiries
Decision date : 28 Mar 2017
The Ombudsman's final decision:
Summary: Mr O complains the Council has not maintained a highway to a suitable standard. The Ombudsman will not investigate this complaint as it would be reasonable for Mr O to use his right to go to court.
- The complainant, who I shall call Mr O, says the Council has not maintained a highway to the required standard.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
How I considered this complaint
- I have considered the information Mr O sent to us and the Council’s replies to his complaint to it. Mr O has spoken to me about an earlier version of my final view.
What I found
- The legal use of the word ‘highway’ in English law covers any route or path with a public right of access, including footpaths, bridleways, and roads.
- Mr O’s property is accessed by a footpath which is surfaced; I shall refer to this as a ‘highway’ as this is what it legally is. He has complained to the Council about its failure to maintain of the surface of the highway. It is clear from the evidence he has sent me there are some large pot holes in the surface. He says the Council is not meeting its requirement to enable those with disabilities to use the route.
- The Council accepts it is responsible for maintaining the highway. It says the highway is classed as a footpath and it maintains the highway to this standard.
- Section 41 of the Highways Act 1980 says a highway authority is under a duty to maintain a highway maintainable at the public expense. The Act does not define the standard this should be done to.
- Section 56 of the same Act says if someone believes the highway authority is not maintaining the highway to the appropriate standard they can apply to the Magistrates’ Court for an order requiring the authority to take whatever action is needed to bring the highway up to standard.
- The complainant must serve a notice requiring the authority to repair the highway in question. The authority must reply, stating it is the highway authority responsible for the highway. The complainant then has six months to apply to the Magistrates’ Court for an order under the Section 56. Providing the magistrates agree, the order requires the highway authority to carry out the work.
- Despite the existence of this right I have discretion to consider the complaint. Mr O says the costs of court action would be prohibitive and so I should exercise my discretion.
- We might exercise discretion where legal costs are likely to be high compared with the benefit claimed - unless the complaint turns on a point of law which is unclear, or a disputed statutory interpretation.
- It is not for me to decide if the Council has maintained the highway to the appropriate standard. Adjudication on questions of this sort involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can order a council to do the work.
- In view of this it is reasonable for Mr O to use his legal remedy and I am not exercising my discretion to investigate.
- Mr O says the Council has also not liaised with him over damage caused by a utility company, not provided information in the complaint process, not accepted professional advice over rights and disabilities, not complied with spirit of public sector equality duty or their rights of way improvement plan and have not provided guidance of what a pothole is.
- Where there is a jurisdictional bar such as in this case, we will not generally investigate a complaint about the Council’s handling of the matter or its responses to complaints. These issues are peripheral to Mr O’s main complaint, which is about the state of the footpath. As I am not investigating that issue I am not looking at these other issues.
- I will not investigate Mr O’s decision about the maintenance of a highway. It is reasonable of him to use his right to ask a court to rule on this as only the court can decide what standard the Council must maintain the highway to and order maintenance work to be done.
Investigator's decision on behalf of the Ombudsman