Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mr Y to approach the court who are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to carry out maintenance and repair work to parts of the pavement on his road.
2. Mr Y says he has injured himself after tripping up on the pavement and is now fearful of walking on the pavement.

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The Ombudsman’s role and powers

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 investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. These are legal claims which may only be determined by insurers or the courts.
7. We are not able to decide liability or award damages. Consequently, any claim for personal injury, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts. We will not investigate this complaint.
8. Further, 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, depending on their classification 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.
9. If a person considers that a highways authority has failed 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.
10. Mr Y may use this process to try to get the Council to repair the pavement if he still disputes the Council’s view that the intervention level has not been met. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
11. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

12. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to approach the court who are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman