Summary: We will not investigate Mr X’s complaint about disrepair to a footpath and related drainage concerns. This is because Mr X has an alternative legal remedy available, which could resolve his concerns, and it would be reasonable to expect him to use it.

The complaint

1. Mr X was unhappy because he raised several service requests to the Council, about disrepair to the footpath outside his home. He said the drains frequently overflowed, the surface around the drain was poor and the footpath level was lower than other parts of the footpath, meaning access to his driveway was partially restricted.
2. Mr X said in the past his motor vehicle had sustained damage and the Council’s responses were poor, leaving him feeling frustrated.

Back to top

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)

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council, and I considered the Ombudsman’s Assessment Code.

Back to top

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 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. In this case, Mr X said the footpath outside his home, and the drainage system is in disrepair. He said this causes issues with access to his driveway and is concerned the drainage system not functioning properly.
7. The Council has inspected and after an earlier repair, has now completed a further repair. Mr X agrees there is some improvement, but his concerns remain unresolved.
8. In such cases, where 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. Mr X may use this process to try to get the Council to repair the footpath further, if he remains dissatisfied with the level of repair.
9. Additionally, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. And the court can order the Council to do the required work, so it is better placed than us to consider the complaint.
10. Given its powers here, coupled with the fact that even if we did investigate, we could not order the Council to take such action, it is reasonable to expect Mr X to pursue this course of action to resolve his issues.
11. Mr X was unhappy he was put to time and trouble in pursuing a complaint to the Council and then to us, because it’s communication over this matter was poor. We will not investigate that, because it is not a good use of public resources to investigate complaint handling in isolation, where we are not looing at the substantive issue.

Back to top

Final decision

12. We will not investigate this complaint, because Mr X has an alternative legal remedy available, and it would be reasonable to expect him to use it.

Back to top

Investigator's decision on behalf of the Ombudsman