Summary: The Ombudsman will not investigate Mr B’s complaint that the Council is failing in its duty of managing of the highway near his home in accordance with the relevant legislation. This is because it is reasonable to expect him to use the legal remedy the law provides if his maintenance complaint remains unresolved and it would not be appropriate for the Ombudsman to investigate Mr B’s complaint while the Council is considering how it might best address other problems he reported.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council is failing in its duty of managing of the highway near his home in accordance with the relevant legislation, in particular as regards its duties to pedestrian highway users under the Highways Act 1980 and the Equality Act 2010. Mr B told us, as a disabled person and someone who assists people, some of whom are also disabled, he experiences daily occurrences of danger to life because of the Council’s failings.

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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)
4. 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, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I have considered the information Mr B provided and his comments on my draft decision.

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What I found

6. The Equality Act 2010 (the Act) protects people who use the Council’s services from unlawful discrimination. The Act puts a duty on any body that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, the public body must make them.
7. In Mr B’s area highway maintenance is the responsibility of an arm’s length management organisation which the Council wholly owns. Mr B says this leads it to claim budgetary restrictions prevent it from carrying out work needed. He says the Council is failing to take sufficient action, such as bollards, signage, parking enforcement and education, to address the problems caused by vehicles parking on pavements where there are restrictions. Mr B says in reaching its decisions the Council has used inaccurate or falsified traffic studies.
8. The Council replied to Mr B’s complaint in December 2019. It said speeding traffic was an issue for the police. The Council said its signage was correct and in accordance with legislation. It said it was investigating measures to reduce traffic on Mr B’s road and would consider traffic calming along the road.  But it said it had to carry out a survey first so that any design would be suitable and effective. The Council told Mr B it did regular, frequent safety inspections of the highway and maintained it strictly in accordance with its Highway Maintenance Manual.  The Council said the issue Mr B reported had been inspected but the highway defects were not at that time at a level currently needing remedial work.  The Council told Mr B it carried out frequent enforcement of the parking restrictions and it had plans to increase the restrictions to prevent the obstructive parking problem.  It said it had nearly completed proposals for a new Traffic Regulation Order for consultation early in 2020.
9. We do not investigate all complaints people have made to us. If someone can seek a remedy from another body, we usually expect people to use that method.
10. 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.
11. The Ombudsman cannot interpret the law to say the Council has failed to fulfil its duties under the relevant legislation. He has no powers to order the Council to carry out maintenance work Mr B believes is necessary. Section 56 of the Highways Act 1980 provides an alternative remedy for people who wish to take action about this issue. Mr B 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 B wishes to pursue this matter it would be reasonable for him to follow the process set out above.
12. It is for the courts, ultimately, to rule on whether the Council has complied with its legal duties, including those under the Equality Act. It is not fault for a council to prioritise its resources, for example when deciding how best to use its limited parking enforcement budget. It is evident that the Council is considering how it might best address the parking and traffic problems Mr B has reported so it would not be appropriate for the Ombudsman to investigate this part of Mr B’s complaint now while this work is still underway. If Mr B is dissatisfied with the outcome of this process, it will be open to him to make a fresh complaint.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Mr B to use the legal remedy the law provides if his maintenance complaint remains unresolved and it would not be appropriate for the Ombudsman to investigate Mr B’s complaint now while the Council is considering how it might best address other problems he reported.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman