Summary: The Ombudsman will not investigate Mrs X’s complaint that the Council has failed to maintain an unadopted road. The Council has explained that it is not responsible for maintaining the road and if Mrs X wishes to challenge its position it would be reasonable for her to take the matter to court.

The complaint

1. The complainant, Mrs X, complains about the Council’s handling of a highway disrepair 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. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
4. 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 reviewed Mrs X’s complaint and the Council’s response. I shared my draft decision with Mrs X and invited her comments.

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What I found

6. Mrs X contacted the Council in September 2017 to report issues with the footway which runs alongside an unadopted road. She acknowledges the road is unadopted but believes the Council is responsible for maintaining it.
7. The Council did not respond to Mrs X until March 2018 when it wrote explaining the road is unadopted and it accepts no liability for its maintenance. Mrs X challenged this but the Council again did not respond. She complained in October 2018 but did not receive a formal response until May 2019. The Council has now responded at Stages 1 and 2 of its complaints procedure, but Mrs X us unhappy it has not addressed the reasons she believes it is responsible for repairing the footway.
8. The Ombudsman will not investigate this complaint. The substantive issue concerns the Council’s failure to properly maintain a footway which it is not responsible for. Because the Council is not responsible for its maintenance the complaint falls outside our jurisdiction as it does not concern an administrative function of the Council.
9. The arguments Mrs X puts forward in support of her assertions do not prove, on balance, that the Council is responsible for maintaining the footway. If Mrs X wishes to test this it would be reasonable for her to take the matter to court. Section 41 of the Highways Act 1980 requires highways authorities to maintain public highways and under Section 56 of the Act she may serve notice on the Council to comply with this duty. If, as the Council’s responses to date suggest, it disputes liability and refuses to carry out repairs Mrs X may apply to the Crown Court for an order requiring action.
10. It is not for the Ombudsman to decide if the Council is responsible for maintaining the footway; the courts are better placed to deal with this issue.
11. While Mrs X is also unhappy about the way the Council has dealt with her report and complaint, 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 cannot investigate this complaint. This is because it does not concern an administrative function of the Council. If Mrs X wishes to challenge the Council on this point it would be reasonable for her to take the matter to court.

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Investigator's decision on behalf of the Ombudsman