Summary: The Ombudsman will not investigate Mr Q’s complaint about the Council’s failure to repair the damaged pavement outside his home. It is unlikely we would find fault with the Council. And Mr Q may go to court.

The complaint

1. The complainant, who I have called Mr Q, complained that Essex County Council has not repaired a damaged pavement outside his house. He is also unhappy that it will not say when it will do so.

Back to top

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 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’. 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)
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)

Back to top

How I considered this complaint

5. I considered the information Mr Q provided. I considered Mr Q’s comments on a draft of this decision.

Back to top

What I found

Background

6. Section 56 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to confirm whether it is responsible for maintaining a highway. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is responsible for maintaining the highway and, if so, order the authority to repair the highway within a reasonable period. If responsibility for maintaining the highway is not disputed the person can apply to a magistrates’ court.
7. Essex County Council is a highway authority.

What happened

8. In 2019 a vehicle damaged the pavement outside Mr Q’s home. He reported the damage to the Council.
9. The Council inspected the damage. It emailed Mr Q to say the repair was not urgent and would periodically review it. When Mr Q contacted the Council it could not say when it would do the repair.
10. Mr Q complained to the Council. In response, it said it prioritised the principal road network, repairing the worst potholes and other safety-critical work such as flooding and bridge repairs. The Council apologised for being unable to say when it would repair the damage but said it would continue to monitor it.
11. Mr Q is particularly unhappy the Council will not say when it will repair the damaged pavement. He believes the pavement is unsafe for pedestrians and is unsightly. He would like the Council to say when it will do the repair.

Assessment

12. We will not investigate this complaint.
13. The Council inspected the damaged pavement before deciding it was not urgent. It told Mr Q how it prioritises repairs and that it would monitor the damage. We are unlikely to find fault with the way the Council considered the damage or how it decides to prioritise repairs.
14. Mr Q is unhappy the Council will not say when it will do the repair. The pavement outside Mr Q’s home is part of the highway. So, if Mr Q believes the Council has failed to properly maintain the pavement he may take his complaint to court. I explained this in paragraph 6. The Council has accepted it is responsible for maintaining the pavement so Mr Q may take his complaint to the Magistrates’ Court. It would then be for the Court to decide what repairs, if any, the Council should do and set a timescale for the work.
15. I think it would be reasonable for Mr Q to go to the Magistrates’ Court if he believes the Council is failing to maintain the pavement outside his home. This is because the Court has powers to require the Council to carry out repairs. We do not have the powers to do so.

Back to top

Final decision

16. We will not investigate this complaint for the reasons in the Assessment.

Back to top

Investigator's decision on behalf of the Ombudsman