Summary: The complainant says the Council has failed to fully repair the pavement outside his home. And it will not speak to him direct to discuss his concerns. The Ombudsman will not investigate this complaint. It is outside his jurisdiction as the complainant can ask the court to decide if the Council should replace the pavement.

The complaint

1. The complainant, whom I shall call Mr X, says the Council has failed to repair the pavement outside his house, despite many reports he has made. He believes the poor condition of the pavement will cause damage to his drive or someone will have an accident.
2. Mr X also complains that he cannot speak directly to a Council worker about his concerns.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
5. 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
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

6. I considered the information provided by Mr X in his complaint form. I also considered the Council’s records and photographs of the site.

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What I found

7. Mr X has reported damage to the pavement outside his house many times through the Council’s website.
8. The Council has inspected the site, carried out a risk assessment and made the repairs it says are necessary to make the pavement safe.
9. Mr X is not happy with the repair and wants the whole pavement replaced.
10. Section 56 of the Highways Act 1980 enables any member of the public to apply to a magistrates’ court for an order requiring the highway authority repair the highways (including the pavement or footpath).
11. Mr X can serve a notice on the Council, requiring it to admit whether the pavement in question is part of the highway and whether it is liable to maintain it. The Council must respond to the notice within one month. If it does not, Mr X can apply to the magistrates’ court for an order to confirm:
• the road is a highway
• the Council is responsible for maintaining it; and
• it must be put in repair.
12. If the Council admits the road is a highway and it is liable to maintain it, Mr X has six months to make a complaint to the local magistrates’ court. He can ask it to find the highway is out of repair. The court can order the Council to put the road in repair and specify a period within which to do this.
13. We will not normally investigate a complaint where a complainant can go to court. As the law provides Mr X with the opportunity to act in court under s56 of the Highways Act 1980, the Ombudsman does not intend to investigate this complaint. It is reasonable to expect Mr X to use his right of remedy in the courts because the process is relatively straightforward and there is no need to instruct counsel in proceedings before magistrates. The court also has the power to order the Council to carry out work whereas the Ombudsman does not
14. Mr X also complains he cannot speak directly to the Council.
15. The Council uses a self-service reporting service for highway defects on its website. The website state:

“Due to the volume of reports we receive from the public it is not possible for a personalised response to be provided to every enquiry and generally we will provide updates electronically on your report reference. Where we feel it may aid an inspection or assessment of the problem you have reported, we will try to contact you to discuss this further.”

16. In this case the Council has inspected the defect, carried out a risk assessment and made the repairs it considers necessary. It is not required to contact Mr X to discuss the matter and the Ombudsman cannot require it to do so.

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Final decision

17. I will not investigate this complaint. If Mr X is not satisfied with the condition of the pavement outside his home, he can apply to the court. And we are unlikely to find fault in the Council’s operation of and online reporting system for reporting damage or disrepair on the highway.

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Investigator's decision on behalf of the Ombudsman