Summary: The Ombudsman will not investigate this complaint about the condition of a pavement. We are unlikely to find fault in the Council’s actions. And it is outside his jurisdiction as the complainant has a remedy in court.

The complaint

1. The complainant, in this statement I will refer to him as Mr X, says the Council has failed to keep the pavement outside his home in the same condition are the rest of the road. And this is having a negative impact on the value of his home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out the Ombudsman’s powers but also imposes restrictions on what she can investigate.
3. 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.

(Local Government Act 1974, section 24A (6), as amended)

4. The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c))

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How I considered this complaint

5. I have considered the information Mr X provided in his complaint form and the Council’s responses to his complaint

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What I found

6. Mr X complains the pavement outside his home was not repaired to the same standard as the rest of the road 20 years ago. He wants it repaired.
7. The Council told Mr X that it cannot give him any information about the repairs carried out 20 years ago as it no longer holds the information. But it arranged for a highways officer to inspect the road.
8. Following the inspection, the Council told Mr X an area of pavement outside Mr X’s home about 4 metres by 1 metre is showing signs of damage by tree roots. But this was not at a level requiring repair at the time of the inspection. It confirmed it will be repaired in the future.

Assessment

9. Following Mr X’s complaint, the Council inspected the pavement. It decided that while there was some damage, it did not need repair at that time, but would in the future. This is a decision it is entitled to make. The Ombudsman considers complaints of administrative fault. We cannot investigate the Council’s spending priorities as these are matters for the electorate.

10. Also, Section 56 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to confirm that a way (the roadway including any footpaths) is a highway and that it is liable to maintain it. If the highway authority disputes that it is liable to maintain the way, or if it does not respond within one month, the person may apply to the Crown Court for the court to determine if the highway authority is liable for the maintenance, and if it is, to put it in proper repair within a reasonable period. If liability is not in contention, application may be made to a magistrate’s court.

11. Mr X believes the Council has wrongly decided not to repair the pavement. He has the right to take his complaint to court. 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.

12. Because he has this right to go to court to resolve the issue, Mr X’s complaint is outside the Ombudsman’s jurisdiction.

13. I have discretion to investigate the complaint even though Mr X has this legal right. But it is my view there is no evidence of fault in the way the Council decided not to immediately repair the pavement outside Mr X’s house. And it is reasonable for him to take his complaint to court because the court has powers to instruct the Council to carry out any necessary work. The Ombudsman has no such powers.

Final decision

14. I will not investigate this complaint. This is because we are unlikely to find fault in the way the Council decided not to repair the pavement outside Mr X’s house. And if he believes it should be repaired, then Mr X can apply to court.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman