Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to approach the court if he wishes to pursue the matter, who are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to ensure the repair and maintenance of paving slabs in his area. He is also concerned about other issues such as pavement cleanliness, where he says there is a problem with littering in the area that the Council has failed to deal with.
2. Mr Y says the issues have led to the area becoming unpleasant and he feels this is unfair on residents.

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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 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

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

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My assessment

6. The Council as a local highways authority has a statutory duty to reasonably maintain and repair the highway, in this case the pavements and footpaths, so it is free of danger to all users using the highway in a way normally to be expected. This means 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.
7. Mr Y complained that the pavement and footpaths in his area had fallen into general disrepair with slabs becoming broken and in places unstable.
8. The Council in its complaint response explained that it carried out regular patrols of the area, but also that it relied on reports from the public to identify issues. It said that it then took a risk-based approach on carrying out repairs. It said that it would like to replace slabs, but that it had to prioritise risk and was unable to carry out larger scale changes due to budget constraints.
9. As the Council has a reactive service, prioritised on risk and an ongoing programme of monitoring for problems it is unlikely we would find fault. The Council is entitled to make a judgement on where to prioritise its resources based on its professional assessment. Consequently, there is insufficient evidence of fault in the Council’s approach to the issue to justify investigation.
10. If Mr Y is concerned about a particular issue and disagrees with the Council’s assessment, he 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 pavement if the court agrees to order it.
11. 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 if he wishes to pursue the matter.
12. 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.
13. Mr Y complained also about littering in the area as well as other problems including spitting and fly tipping. The Council has explained how it monitors areas for problems but acknowledged that this would not always be able to identify issues and that the Council would in places rely on reports from the public.
14. The Council explained how Mr Y could report specific issues to it and that it maintained monitoring in the area depending on footfall, including relating to local sporting events. As the Council has been able to explain to Mr Y how it has acted, and continues to monitor the area for such issues, as well as acting on reports from the public, there is not enough evidence of fault to justify investigating the issue. We will not investigate.

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Final decision

15. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to approach the court if he wishes to pursue the matter, who are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman