Summary: We will not investigate this complaint about the council allowing the pavement to become overcome with grass and debris. This is because the law provides an alternative remedy for the issue which it would be reasonable for Mr X to use.

The complaint

1. Mr X complains that a section of the pavement near a busy road has fallen into a state of disrepair. This means that buggies and wheelchairs can’t use it, and pedestrians have to walk closer to cars travelling at speed. Mr X wants the Council to properly clear the pavement.

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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 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)

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How I considered this complaint

4. I considered information provided by Mr X
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
7. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
8. We cannot interpret the law to decide if the Council has fulfilled its obligations under Section 41 the Highways Act 1980 in this case. However, the Act provides a mechanism for Mr X to raise the matter with the court and seek a view on whether it has done enough. This is set out at Section 56 of the Act.
9. If Mr X believes the Council has failed to properly maintain the highway, he may serve notice on the Council and if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.

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Final decision

10. We will not investigate this complaint. It would be reasonable for Mr X to refer his highway disrepair issues to the court under process provided in Section 56 of the Highways Act 1980.

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Investigator's decision on behalf of the Ombudsman