Decision : Closed after initial enquiries
Decision date : 28 Mar 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about the condition of the footpath along the complainant’s road following resurfacing works, and associated concerns about the Council’s complaints process. This is because it is reasonable to expect the complainant to pursue a court remedy if he thinks the footpath is in a state of disrepair, and we will not normally investigate associated concerns about the Council’s complaints process in isolation.
- The complainant, whom I refer to as Mr B, says he is complaining about the Council’s inadequate management of the subcontractors that carried out footpath resurfacing works along his road, and about the subcontractors’ poor standards of workmanship. Mr B also says the Council’s complaints policy and process is inadequate, because officers failed to identify his initial correspondence as a complaint, its complaint responses were inconsistent, and he was not kept informed about how the complaint was progressing.
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:
- Mr B’s complaint to the Ombudsman;
- The Council’s Stage 2 complaint response; and,
- Mr B’s comments on a draft version of this statement, and a copy of his email correspondence with the Council.
What I found
- Section 56 of the Highways Act 1980 enables a person to apply to a Magistrates court for an order requiring the highway 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. Providing the magistrates agree, the order requires the highway authority to carry out the work.
- I appreciate Mr B says his complaint is about the Council’s management of its subcontractors, and their standard of workmanship. But as I see it, the substantive injustice arising from these alleged faults is that Mr B believes the footpath has been left in a state of disrepair and requires further works to bring it up to an acceptable standard. Mr B can seek to remedy this injustice by taking the matter to court via the Section 56 process. 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.
- With reference to paragraph 3 above, because Mr B has a court remedy for the substantive injustice arising from the alleged fault by the Council, his complaint would normally fall outside the jurisdiction of the Ombudsman.
- I have discretion to investigate such matters even though Mr B has a legal remedy. But in my view, it is reasonable that Mr B should take his complaint to court because it has powers to instruct the Council to carry out any necessary work. The Ombudsman has no such powers.
- And as the main part of the complaint appears to be outside the Ombudsman’s jurisdiction, we would normally take the view that we should not pursue associated concerns about the complaint handling process in isolation. This is mainly because it is extremely difficult, if not impossible, to come to a meaningful conclusion on such matters without the Ombudsman considering issues that the law says we should not consider.
- The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Mr B to pursue a court remedy for the substantive injustice arising from the alleged fault by the Council, and the Ombudsman would not normally consider Mr B’s associated concerns about the complaints process in isolation.
Investigator's decision on behalf of the Ombudsman