Summary: We will not investigate this complaint about the condition of a pavement. We are unlikely to find fault in the Council’s actions. And it is outside our jurisdiction as the complainant has a remedy in court.

The complaint

1. The complainant, who I shall call Mr X, says the Council refuses to repair the pavement outside his home. He says tree roots are lifting the tarmac causing a trip hazard and allowing a puddle to form. He says this is dangerous as he has hurt himself tripping on the uneven surface. And in winter the puddle can freeze causing a further hazard.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out the Ombudsman’s powers but also imposes restrictions on what she 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 have considered the information Mr X provided in his complaint form, his complaint to the Council and the Council’s responses.

Back to top

What I found

6. Mr X complains the pavement outside his home is uneven because of tree roots and is a hazard. He wants it repaired.
7. The Council says an officer has inspected the site. It says no faults which meet the criteria for intervention were found. It gave Mr X a copy of the criteria for intervention.
8. The Council also confirmed it is aware there are issues with tree roots in Mr X’s road because the trees are close to the footway. It stated its contractors have trimmed the trees in recent years to help lessen these issues. It has asked its contractor to also inspect the site and advise if further action is needed.
9. Finally, the site will be subject to routine annual inspections.
10. This is a decision it is entitled to make. We consider complaints of administrative fault. We cannot substitute our view over the professional opinion of an officer who has inspected the site.
11. Also, Section 56 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to confirm that a way (the roadway including any footpaths) is a highway and that it is liable to maintain it. If the highway authority disputes that it is liable to maintain the way, or if it does not respond within one month, the person may apply to the Crown Court for the court to determine if the highway authority is liable for the maintenance, and if it is, to put it in proper repair within a reasonable period. If liability is not in contention, application may be made to a magistrate’s court.
12. Mr X believes the Council has wrongly decided not to repair the pavement. He has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
13. Because he has this right to go to court to resolve the issue, Mr X’s complaint is outside the Ombudsman’s jurisdiction.
14. I have discretion to investigate the complaint even though Mr X has this legal right. But it is my view there is no evidence of fault in the way the Council decided not to immediately repair the pavement outside Mr X’s house. And it is reasonable for him to take his complaint to court because the court has powers to instruct the Council to carry out any necessary work. The Ombudsman has no such powers.

Back to top

Final decision

15. I will not investigate this complaint. We are unlikely to find fault in the way the Council decided not to repair the pavement outside Mr X’s house. And if he believes it should be repaired, then Mr X can apply to court.

Back to top

Investigator's decision on behalf of the Ombudsman