Summary: We will not investigate this complaint about the condition of a pavement. This is because the complaint late. Also, there is not enough evidence of fault by the Council, and the complainant has a remedy in court.

The complaint

1. The complainant, Mr X, complained about the condition of the pavement in his road. Mr X says the pavement is uneven and dangerous and wants the current flagstones replaced.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (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)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained to the Council in 2018 about the condition of the pavement close to his home. The Council said its survey showed the pavement in question was “mid-life” and not therefore due for replacement.
8. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mr X could not have complained much earlier, and so the exception at paragraph 2 applies to his complaint.
9. But even if Mr X’s complaint was not late, it is not one we would investigate. I appreciate Mr X would like the pavement replaced. But the Council’s decision it does not need replacing is one of professional judgment. There is not enough evidence of fault by the Council for us to be able to question the decision.
10. Also, under Section 41 of the Highways Act 1980, the Council has a duty to maintain the public highway. The definition of a highway includes the pavement running alongside a road and any footpaths for which the Council is responsible.
11. If Mr X believes the Council has failed in its duty to maintain the highway, he can serve a notice on the Council to carry out repairs. Should it fail to do so, Mr X can apply to the magistrates’ court for an order under Section 56 of the Highways Act 1980, requiring the Council to take action by a set date. The Council would be bound by any order made by the magistrates’ court. The Ombudsman has no powers to order the Council to carry out work to the public highway. It is therefore reasonable for Mr X to use the alternative remedy available. It can provide the outcome Mr X is looking for – an investigation by the Ombudsman cannot.

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Final decision

12. We will not investigate Mr X’s complaint because it is late, there is not enough evidence of fault, and it is reasonable for him to seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman