Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has failed in its duty to prevent the obstruction of the pavement in his road and protect his right to use it. This is because it is reasonable to expect him to go to court if the problem is not resolved to his satisfaction.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council has failed in its duty to prevent the obstruction of the pavement in his road and protect his right to use it. Mr B told us he must step into the road to avoid the obstruction, so he is concerned for his personal safety. He says the situation also attracts anti-social behaviour.

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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. 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

4. I have considered the information Mr B provided and the Council’s responses to his complaint. I have given Mr B an opportunity to comment on my draft decision.

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What I found

5. Mr B told us he has been contacting the Council about the issue for eight months without getting a solution. He says the footpath is obstructed by commercial refuse bins.
6. The Council has apologised to Mr B for its delay in responding to his complaint. It told him it had been liaising with the council which owns the bins to try to find a solution. The Council has suggested Mr B can discuss the matter with the council which owns the bins. It explained the users of the bins did not have appropriate space to store them and they cannot at the present time use smaller bins. The Council told Mr B it had asked the council which owns the bins to find appropriate nearby land which it could use for the bins and to remove them from the footpath as soon as it finds this space.
7. To put things right Mr B wants the Council to secure removal of the bins from the footpath. It is possible a solution to the problem Mr B has identified can be found before long. But if Mr B remains unhappy there is another option open to him. Section 130A of the Highways Act 1980 provides a method for members of the public to service a notice on a highway authority to remove an obstruction from a public highway, including a highway footpath. There is no charge for serving this notice. If the highway authority does not remove the obstruction to the satisfaction of the person who served the notice, section 130B of the Act states that person may apply to a magistrates’ court. The court can issue an order requiring the Council to take action.
8. It would not be unreasonable to expect Mr B to go to court in this case. This is because, unlike a court of law, we have no powers to order the Council to clear the footpath. This is the outcome Mr B wants. The law provides a specific remedy for members of the public to use.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Mr B to go to court if the problem is not resolved to his satisfaction.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman