Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating and the courts are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to locate and properly repair a 10-metre stretch of the pavement despite Mr Y providing maps and photographs repeatedly, leaving the pavement inadequate in his view. Mr Y is also unhappy with the response to his complaint about the matter, including that he did not receive a telephone call and feels the service has been poor.
2. Mr Y says he has dedicated a considerable amount of time and effort to raising the matter and feels that he should receive a reduction in his council tax as a result.

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The Ombudsman’s role and powers

3. 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 not enough evidence of fault to justify investigating, or
• 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

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

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My assessment

5. 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.
6. If a person considers that a highways authority has failed to maintain a highway it is responsible for, including in this instance the pavement, 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.
7. Mr Y may use this process to try to get the Council to repair the pavement if he wishes. 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 this right to go to court about this matter.
8. Further, 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, so it is better placed than us to consider the complaint. We will therefore not investigate.
9. Further, the Council has inspected the pavement and while Mr Y may have felt frustrated at the number of inspections needed to locate the issue before any repair was undertaken, the Council has acted to make repairs where it, in its professional judgement, felt this was needed. As the Council has taken this action, even where Mr Y may feel dissatisfied, there is not enough evidence of fault to justify investigation.

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Final decision

10. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman