Summary: The Ombudsman will not investigate Mr X’s complaint about a highway disrepair matter. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to repair a defect in the pavement which he reported in May 2018. He says it is dangerous and that his wife has caught her foot on it several times.

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The Ombudsman’s role and powers

2. 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

3. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and considered his comments.

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What I found

4. Mr X reported a defect in the pavement by his home in May 2018. The Council has investigated but decided it does not meet the threshold for repairs. It has explained it will consider any future reports and re-assess the matter as required, however it does not consider there is currently any need to take further action. Mr X disagrees with its decision and believes over 100 m2 of the pavement needs resurfacing.
5. The Ombudsman will not investigate this complaint. 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. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
6. The Ombudsman cannot interpret the law to say the Council has failed to fulfil its duty but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for her to follow the process set out above.

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Final decision

7. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman