Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s handling of her report of highway disrepair. The issues she raises are more appropriate for consideration by the courts and we cannot investigate any concerns about the Council’s handling of her complaint as a separate matter.

The complaint

1. The complainant, Mrs X, complains about the Council’s handling of her reports of a defect in the highway. She is also dissatisfied with the way the Council dealt with her complaint about the matter.

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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)

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How I considered this complaint

4. I reviewed Mrs X’s complaints and the Council’s responses. I shared my draft decision with Mrs X and invited her comments.

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What I found

5. Mrs X tripped over a crack in the pavement in 2018. She contacted the Council to report the incident and ensure it was aware of the defect. A council officer met Mrs X at the site of her fall but did not consider the pavement required repair. She then received a telephone call from another officer to discuss the matter. She explained she had already met with an officer on-site and ended the call. The officer then called back twice in error after mistakenly re-dialling Mrs X’s number
6. Mrs X was not satisfied with the Council’s handling of her report or its investigation into the defect. She complained to the Council but was not happy with its response.
7. The Ombudsman will not investigate this complaint. Mrs X’s concerns stem from her report of highway disrepair and this is an issue the courts are better placed to deal with.
8. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. The level of maintenance, frequency of inspections and the threshold for repairs are not defined in law. Whether the crack Mrs X reported amounts to “disrepair” is therefore open to interpretation.
9. If Mrs X believes the defect requires repair and that the Council has failed to meet its obligations under the Highways Act 1980 she may take the issue to court. The courts are better placed to determine whether the Council has complied with its duty and if it finds it has not, it may order the Council to act. This is not an outcome we can achieve.
10. Mrs X says she suffered injuries as a result of her fall. If she wishes to make a claim for compensation she should put her claim to the Council’s insurers. If she is not happy with their response it would be reasonable for her to take the matter to court.
11. Mrs X is also clearly unhappy about the way the Council has dealt with her complaint. But the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either. (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because the complaint stems from a highway disrepair issue and the courts are better placed to determine whether Mrs X is entitled to compensation and if it should act to repair the pavement.

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Investigator's decision on behalf of the Ombudsman