Summary: We will not investigate Mr B’s complaint about the way the Council dealt with his complaints about footpaths near his home. This is because the Council has now taken action and it would not be unreasonable to expect those affected to go to court if there are similar unresolved issues in future.

The complaint

1. The complainant, Mr B, complained about the way the Council dealt with his complaints about footpaths near his home.

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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 can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I have considered the information Mr B provided, the Council’s responses to his complaints and his comments on my draft decision.

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What I found

6. In July 2020 Mr B complained to the Council about the overgrown condition of a footpath between his road and another road. In its response the Council told him this would be the responsibility of another council. Mr B told us he knew this was incorrect because the Council had previously cleared the footpath in 2018. After Mr B had involved his local councillor in the matter, he received a response from the Council in September 2020. The Council apologised for its delay. It told Mr B it had escalated the work as a priority and it had been completed. The Council refused Mr B’s request for his complaint to be considered at stage two because it had upheld it.
7. Mr B then raised another complaint about the condition of the footpath on his road. He said the Council had advised him this was the responsibility of another council. But that council told him it was a West Sussex County Council issue. He provided video footage to the Council to show the situation. The Council closed his enquiry. It said it could not guarantee highway drainage was always 100% effective.
8. Mr B told us the main driver for his initial complaint was the Council’s inconsistent handling of issues raised on-line. He said the Council had professionally acknowledged and investigated other issues.
9. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to carry out repairs where necessary. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, and threshold for repairs is not. It is therefore open to interpretation.
10. We cannot interpret the law to say the Council has failed to fulfil its duties under the relevant legislation. We have no powers to order the Council to carry out maintenance work Mr B believed was necessary. Section 56 of the Highways Act 1980 provides a specific alternative remedy for people who wish to take action about highway disrepair. Mr B has told us the Council has now carried out works to address the condition of the footpath. Had the disrepair Mr B reported remained unresolved, he and other residents affected could have served notice on the Council. There is no charge at this stage of the process. If the Council did not act, Mr B could have applied to the court for an Order requiring it to carry out repairs within a reasonable period.
11. Mr B said he wants us to investigate this issue further so that local residents do not need to go into battle with the Council in the future, if these issues reappear. We do not normally investigate complaints about something which may happen in the future. In any case, only the courts may decide whether the Council has fulfilled its statutory obligation so, if Mr B or other residents wish to pursue similar issues in future, we would not consider it unreasonable for them to follow the process set out above.
12. We would not investigate a complaint about the Council’s complaint handling when we are not investigating the substantive issue which led to the complaint.
13. A further point Mr B has raised is that, because of a planning condition, developers are due to carry out works to the stretch of road in this case. He says the Council could have used this opportunity and the Covid-19 situation as a way of improving the neighbourhood and the safety of pedestrians using the road. We must, however, give the Council an opportunity to consider and respond to this point before we look at whether to pursue it further.

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Final decision

14. We will not investigate this complaint because the Council has now taken action and it would not be unreasonable to expect those affected to go to court if there are similar unresolved issues in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman