Summary: We will not investigate Miss X’s complaint about a maintenance issue concerning the pavement outside her home. This is because she has made a personal injury claim to the Council and if she is not happy with its response to the claim it would be reasonable for her to take the matter to court.

The complaint

1. The complainant, Miss X, complains about the state of the pavement outside her home. She says the Council has delayed in carrying out repairs and she suffered an injury as a result.

Back to top

The Ombudsman’s role and powers

2. 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’.
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate complaints about the management of housing let on a long lease by a council that is a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)
5. 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

6. I considered information provided by Miss X and the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Section 41 of the Highways Act 1980 places a duty on local highway authorities to maintain public highways.
8. From the information Miss X has provided it is unclear whether the defect she mentions is in the public highway or land which is part of a housing estate managed by the Council and let on a long lease to the residents who live there. But regardless, her complaint about the issue falls outside our jurisdiction.
9. If the land forms part of the public highway the Highways Act 1980 provides an alternative remedy for the issue which it would be reasonable for her to use. Section 56 of the Act allows Miss X to serve notice on the Council in relation to the defect and, if it fails to repair it, she may apply to the court for an Order requiring it to carry out repairs.
10. I consider it reasonable for Miss X to use the process as we cannot interpret the law to decide if the Council has complied with its duty to maintain the highway. The process will also confirm whether the land in question is part of the public highway or not.
11. If the land is not part of the public highway then this is because it forms part of a housing estate let on a long lease by the Council acting as a social housing provider. As such, its actions in maintaining the land fall outside our jurisdiction as set out at Paragraph 3. Miss X may however be able to complain about it to the Housing Ombudsman.
12. In any event, the injustice Miss X claims stems from her accident and injury and it is for the courts, rather than us, to decide if the Council is liable for this and what compensation, if any, she is entitled to.

Back to top

Final decision

13. We will not investigate this complaint. This is because it would be reasonable for Miss X to make a claim against the Council for her injuries at court.

Back to top

Investigator's decision on behalf of the Ombudsman