Summary: The Ombudsman will not investigate this complaint about the Council deciding not to repair an alleged defect in the footway outside the complainant’s property. This is because there is insufficient evidence of fault in the way the Council reached its decision, and it is reasonable to expect the complainant to use the legal remedy available to him.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council has refused to repair a defect in the footway outside his house, and this makes it very difficult for him and his wife to leave their property due to their mobility issues.

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The Ombudsman’s role and powers

2. 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. We 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)
3. In that regard, we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. And 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

5. I have considered:
• Mr B’s complaint to the Ombudsman;
• The photographs taken during the Council’s site visit;
• The Council’s response to Mr B’s complaint;
• The Council’s ‘Maintenance and Inspections Strategy: Carriageways, Footways & Cycleways’
6. I also gave Mr B the opportunity to comment on a draft version of this statement.

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What I found

7. Mr B reported an alleged defect in the footpath outside his property.
8. The Council inspected the site and took photographs. It said there was a very small blemish in the tarmac, but concluded it did not meet its criteria for repair.

Assessment

9. I appreciate Mr B is unhappy about the Council’s decision to take no further action in relation to the alleged footway defect. But the Ombudsman cannot question the merits of the Council’s decision unless there is evidence of fault in the way it was made. The Council has conducted a site visit, taken photographs, and explained in the complaint response how it reached its decision. I therefore do not consider there is sufficient evidence of fault to warrant the Ombudsman pursuing the matter further.
10. In addition, under Section 41 of the Highways Act 1980, the Council has a duty to maintain public highways. Whether the Council has met its duty under section 41 of the Highways Act 1980 requires interpretation of the law; which is ultimately a matter for the courts. So, if Mr B believes the Council has failed in its duty to maintain the highway, he can serve a notice on the Council to carry out repairs. Should it fail to do so, he can apply to the magistrates’ court for an order under section 56 of the Highways Act 1980, requiring the Council to take action by a set date. The Council would be bound by any order the magistrates’ court makes. The Ombudsman has no powers to order the Council to carry out work to the public highway. So, it is not unreasonable to expect Mr B to use the legal remedy available to him.

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Final decision

11. The Ombudsman will not investigate Mr B’s complaint. This is because there is insufficient evidence of fault in the way the Council considered Mr B’s concerns about the footpath, and it is reasonable to expect him to use the legal remedy available to him.

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Investigator's decision on behalf of the Ombudsman