Summary: We will not investigate Mr X’s complaint about the Council’s handling of his report of a defect in the pavement. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court. The issue has also not caused Mr X significant personal injustice.

The complaint

1. The complainant, Mr X, complains the Council failed to properly investigate his report of highway disrepair. He says the process has been long and drawn out and has left him annoyed and frustrated.

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The Ombudsman’s role and powers

2. 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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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 reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.

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What I found

5. Mr X contacted the Council to report a defect in the pavement outside his home in mid-2020. He raised the issue after witnessing an elderly lady stumble and almost fall into the path of an oncoming car.
6. Mr X was not happy with the Council’s investigation into his report. He says officers pulled up next to the pavement but stayed for no longer than 10 seconds before driving away and did not leave their vehicle to inspect the defect at any time.

The Council’s duty

7. 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.
8. 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.
9. We cannot interpret the law to say the Council has failed to fulfil its duty to maintain the highway; this is the court’s role. Section 56 of the Highways Act 1980 allows Mr X to serve notice on the Council and, if it does not act, it would be reasonable for him to apply to the court for an Order requiring it to carry out repairs.
10. While Mr X complains about the way the Council reached its decision not to carry out repairs it is the decision itself which gave rise to his complaint; had the Council’s highways engineer carried out their inspection in the same manner but decided it should undertake repairs there would have been no need for Mr X to complain.
11. The matter has also not caused Mr X significant personal injustice. I appreciate it must have been distressing for him to see someone trip and think about what might have happened, but the law does not allow us to recommend a remedy for something which could have happened but did not.
12. Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

13. We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman