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Calderdale Metropolitan Borough Council (16 017 838)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 27 Mar 2017

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Ms B’s complaint about the poor condition of a pavement near her home. Ms B has the right to apply to a magistrates’ court for an order requiring the authority to bring the highway up to standard. It is reasonable to expect Ms B to exercise this right.

The complaint

  1. The complainant, whom I shall call Ms B, has reported an uneven paving slab to the Council. Ms B says as a wheelchair user, the slab causes her problems when using the pavement. She wants the Council to re-lay the slab, but the Council has refused to do this.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)

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How I considered this complaint

  1. I considered the information Ms B provided when she made her complaint and I have also considered the relevant legislation. I sent a draft decision to Ms B and invited comments.

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What I found

  1. Section 56 of the Highways Act 1980 enables any member of the public to apply to a magistrates’ court for an order requiring the highway authority to put the highway back in repair within a specified period of time.
  2. Ms B can serve a notice on the Council, requiring it to admit whether the pavement in question is highway and whether it is liable to maintain it. If the Council fails to respond to the notice within one month, or denies it is responsible for maintaining the pavement, Ms B can apply to the courts for an order.
  3. If the Council admits the pavement is a highway and it is liable to maintain it, Ms B has six months to apply to the magistrates’ court for an order requiring the Council to repair it. The court can order the Council to put the pavement in repair and specify a time period within which to do this.
  4. We will not normally investigate a complaint where a complainant can go to court. As the law provides Ms B with the opportunity to take action in court under s56 of the Highways Act 1980, the Ombudsman will not investigate this complaint. It is reasonable to expect Ms B to use her right of remedy in the courts because there is no need to instruct counsel in proceedings before magistrates. The court also has the power to order the Council to carry out work whereas the Ombudsman does not.

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Final decision

  1. The Ombudsman will not investigate this complaint. Ms B has a right of remedy through the courts and it is reasonable to expect her to use this right.

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Investigator's decision on behalf of the Ombudsman

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