Summary: The Ombudsman will not investigate Mr B’s complaints about the condition of a pavement. It is reasonable to expect Mr B to use his right of remedy in the courts if he believes the Council has failed to meet its duty to maintain the highway.

The complaint

1. The complainant, whom I shall call Mr B, complains the Council has failed to properly maintain a pavement, leading to raised ironworks, loose gravel and an uneven surface. Mr B has explained his elderly mother had a fall and suffered from bad bruising and chipped teeth. Mr B wants the Council to resurface the pavement.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)

Back to top

How I considered this complaint

4. I have considered the information Mr B provided and I sent a draft decision to Mr B to invite comments before I made a final decision.

Back to top

What I found

5. Under Section 41 of the Highways Act 1980, the Council has a duty to maintain highways maintainable at the public expense. The definition of a highway includes the pavement running alongside a road and any footpaths for which the Council is responsible.
6. While Mr B is unhappy with the condition of the pavement, the Ombudsman will not investigate this complaint. Whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretations of the law. This is not a matter for the Ombudsman.
7. If Mr B believes the Council has failed in its duty to maintain the Highway, he may serve notice on the Council to carry out repairs. Should it fail to do so, Mr B may then apply to the magistrates’ court for an order under section 56 of the Highways Act 1980 requiring it to take action. The Council would be bound by any order made by the magistrates’ court and it is therefore reasonable to expect Mr B to use the alternative remedy available to him

Back to top

Final decision

8. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Mr B to use his right of remedy in the courts if he believes the Council has failed to meet its duty to maintain the highway.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman