Summary: We will not investigate Mr X’s complaint about the Council not maintaining the road and pavement near to where he lives. This is because it is reasonable for Mr X to pursue this matter at court.

The complaint

1. Mr X says, over the past few years, his children have come off their scooters due to the Council failing to maintain a section of a pavement and nearby road. Mr X says the Council’s temporary repairs to defects in the road fail repeatedly, which causes large quantities of grit to build up on the nearby pavement. Mr X says the grit caught in the wheel of his child’s scooter, which resulted in his child coming off their scooter and the scooter falling into the road.
2. Mr X complains he has reported the issues for repair to the Council, but it has ignored his numerous requests. He says the Council has arranged for road sweepers to clear the road, but this did not lead to it clearing the pavement.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

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. We generally take the view the courts are in the best position to decide whether a council has complied with this duty.
8. Mr X’s complaint centres on insufficient road repairs causing grit and debris to regularly build up on the nearby pavement. If Mr X considers the Council has failed to maintain a highway it is responsible for, and wishes to pursue the matter, 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 highway.
9. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
10. Mr X may use this process to try to get the Council to repair the road and maintain the pavement. 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 on 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 X 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. 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.
12. So, we will not investigate this complaint.
13. It is not proportionate for us to consider the Council’s handing of Mr X’s reports of disrepair alone when we are not investigating the substantive part of the complaint.

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Final decision

14. We will not investigate Mr X’s complaint about the Council not maintaining the road and pavement near to where he lives. This is because it is reasonable to expect Mr X to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman