Summary: We will not investigate Ms C’s complaint about the Council’s failure to maintain the pavement next to her home. This is because it is reasonable for Ms C to apply to court for an order requiring the Council to repair this pavement.

The complaint

1. Ms C complains the Council has refused to repair or re-surface the pavement next to her property. Ms C says this pavement is in a dangerous condition and after having hip and knee replacements, she is at risk of suffering an injury. Ms C would like the Council to re-surface this 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 Act 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 Ms C.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Since Ms C complained about this matter, the Council has inspected this pavement on two occasions. The Council says it did not identify any actionable defects during these inspections. This means the Council did not identify any defects which met the Council’s minimum threshold for repair.
7. 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 and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
8. We generally take the view the courts are in the best position to decide whether a local highways authority has complied with this maintenance duty.
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. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
11. Ms C may use this process to try to get the Council to repair the pavement. I find it is reasonable for Ms C to do this. Ms C may seek legal advice about taking such action and she may also be able to get help from other residents who are affected.
12. The court is in the best position to decide whether the Council has met its legal duty to maintain this highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Ms C’s complaint because it is reasonable for her to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman