Summary: We will not investigate Mr B’s complaint about the Council’s failure to maintain a footpath. This is because it is reasonable for Mr B to use the legal remedies available at court.

The complaint

1. The complainant, who I will refer to as Mr B, complains he injured his shoulder after slipping on a public footpath which the Council had failed to maintain. Mr B says he has reported a blocked gully on this footpath several times before and after the incident, but the Council has still not repaired it. Mr B would like the Council to pay him compensation for the physical and mental distress he has suffered because of the Council’s failure to maintain the footpath.

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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 Act 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 considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. Mr B complains he has suffered injuries because of the Council’s failure to maintain a footpath it is responsible for. In effect, Mr B’s complaint is that the Council has been negligent.
8. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
9. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
10. It is not our role to decide whether the Council has been negligent and we have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to put in a compensation claim to the Council’s insurers, and if needed, take the Council to court.
11. I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate Mr B’s complaint about the injury he suffered.
12. In addition, there is a legal process available to members of the public who consider a local highways authority is failing to maintain a highway it is responsible for. The person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
13. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
14. Mr B may use this process to try to get the Council to repair the footpath. I find it is reasonable for Mr B to do this. The Council recently inspected the footpath gully and decided it did not meet the Council’s criteria for repair. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.

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Final decision

15. We will not investigate Mr B’s complaint because it is reasonable for him to use the legal remedies available at court.

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Investigator's decision on behalf of the Ombudsman