Summary: The complainant says the Council failed to keep in good repair the public highway outside his home causing difficulties for him when driving out of his driveway. The Council says the changed levels do not meet its repair criteria and so it has not undertaken any highway repair work. The Ombudsman finds part of the complaint is out of jurisdiction because Mr X has an alternative remedy. The Ombudsman further finds the Council considered whether it should undertake work without fault.

The complaint

1. The complainant, whom I shall refer to as Mr X says the Council failed to:
• Properly consider restoring the public highway outside his home to its previous levels and remedy the subsidence which makes exit from and access to his driveway difficult;
• Properly consider the likely damage to the highway and vehicles caused by vehicles trying to access or exit from Mr X’s driveway.
2. Mr X wants the Council to restore the road to its former condition enabling him to easily and safely access the public highway using the footway crossing outside his home without damaging his car.

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The Ombudsman’s role and powers

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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. 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

6. In considering this complaint I have:
• Contacted Mr X and read the information presented with his complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance and policy;
• Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

7. Section 41 of the Highways Act 1980 imposes a duty to maintain highways that are maintainable at public expense which includes repairing those highways when necessary.
8. There are no legal or regulatory standards to which the Council should maintain highways. The Court of Appeal has ruled the duty is “reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally expected of them”.
9. Where someone claims a council has not kept a highway in good repair, they have the right under Section 56 of the Highways Act 1980 to serve notice on the Council requiring it to repair the highway. The complainant then has six months to apply for an order from the Magistrate’s Court telling the Council to repair the highway. That is an alternative remedy to a complaint to the Ombudsman.
10. If someone suffers injury or damage to property, they may have a claim in law against the Council which they should put to the Council’s insurers. If the insurers reject the claim, the complainant may issue court proceedings. This is an alternative remedy to a complaint to the Ombudsman.
11. Exercising either of these alternative remedies would result in the courts giving a definitive decision on the Council’s legal duty and liability which the Ombudsman cannot give.

What happened

12. Mr X has lived at his home for over 40 years. Access and exit from his home are by a dropped kerb footway crossing giving access to his home and from his home to the public highway. Mr X says that in the last 18 months the kerb stones have shifted, and the footway and highway surfaces have subsided. This has resulted in Mr X’s car catching the highway surface as he drives out of his drive and he now must make evasive manoeuvres to avoid damaging his car.
13. Mr X asked the Council to carry out works to restore the crossing and highway surface to their former level. Mr X pointed out there are visible cracks around the kerb stones and in the road surface.
14. The Council says on inspection it noted it had slurry sealed the highway and footway which altered the surface level. The Council noted there is a sunken area on the right of the footway crossing to Mr X’s home where the kerb is flush with the highway surface. However, the Council says this does not meet its criteria for repair. It is within what it considers reasonable limits and so it has not arranged any work on the highway. Following a site assessment in April 2019 the Council says to resolve the problem it would need to reprofile a section of the footway and reset the kerb line. That is not in the Council’s view within its statutory responsibility because it has no duty to provide access to properties. Any costs involved therefore would be charged to the property owner. The Council has offered to provide a quote for the work if Mr X wishes the Council to undertake it.
15. On comparing photographs of the footway crossing taken in 2009 and April 2019 the Council says in its officer’s professional opinion the site shows the same dip on the right-hand side of the footway crossing. I have examined the photographs. The Council undertook work to the footway outside a neighbouring property to Mr X’s home in 2016 and 2017. The Council fixed rocking kerbstones serving the footway and repaired damage to the footway caused by tree roots.
16. The next review of the condition of the highway and footway is due in 2020.

Analysis- has there been fault leading to an injustice?

17. My role is first to decide if the matter falls within our jurisdiction and if it does, then second to decide if the Council has considered whether it should undertake repair work without fault. If it has acted with fault I must decide if this caused an injustice for which we can recommend a remedy.
18. The Highways Act gives Mr X the right to serve notice on the Council and to use the Magistrate’s Court to decide if the Council should repair the highway. It is in my view reasonable to expect Mr X to use that alternative remedy because the court will decide whether the Council has a duty to repair. The Ombudsman does not have that power.
19. Mr X can claim for any damage caused to his car due to any negligence on the Council’s part by making a claim to the Council’s insurers. If the insurers reject the claim Mr X may take the matter to court for a definitive ruling. Again, it is my view it is reasonable to expect Mr X to use this alterative remedy because the court will make a definitive decision which the Ombudsman may not.
20. The Council responded to Mr X’s concerns by carrying out a site inspection. The professional officers decided the condition of the highway and footway do not meet the Council’s criteria for undertaking repair work. The question of gaining access to and from Mr X’s drive touches on the issue of the footway crossing and any repairs to that are at the householder’s costs.
21. On jurisdiction I find the Ombudsman cannot decide if the Council has met its legal duty to keep the highway in good repair under the Highways Act. That is a matter on which only the courts may rule.
22. On whether the Council has considered undertaking repair work with or without fault I find the Council acted without fault. It undertook a site inspection and its officers reached a professional view having all relevant information before them, including Mr X’s view. Therefore, I cannot challenge the merits of that decision.

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Final decision

23. I am discontinuing my investigation because Mr X has an alternative remedy which addresses his complaint in part and because I can find no fault.

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Investigator's decision on behalf of the Ombudsman