Summary: We will not investigate this complaint about the Council refusing to take enforcement action in respect of damage to the public highway. There is insufficient evidence of fault in the way the Council has responded to the complainant’s concerns, and it is reasonable for the complainant to use the alternative court remedy which is available.

The complaint

1. Mr X complains the Council has refused to take enforcement action against damage caused to the public pavement and highway as a result of nearby building works. Mr X says the Council should use its enforcement powers under the Highways Act 1980 to take action against those responsible for damaging the highway.

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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. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law also 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 Mr X and the Council, which included their complaint correspondence.
6. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is unhappy with the Council’s decision not to take any further action about the condition of the pavement/highway adjacent to the start of the driveway leading to the residential development where he lives.
8. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how the Council made its decisions. If we decide there is insufficient evidence of fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
9. I consider there is insufficient evidence of fault in the way the Council has responded to Mr X’s concerns, so the Ombudsman will not start an investigation.
10. The Council says it has inspected the site in response to each report received, and is satisfied there is no evidence of the public highway being damaged or materially altered. Some granular material was identified on the pavement/vehicle crossover where it abuts the raised private driveway to facilitate access. But this was deemed to represent a very low risk and did not amount to an actionable safety defect. As such, the Council concluded enforcement action was not applicable. These are professional judgements the Council was entitled to reach, even if Mr X disagrees with them, and the Ombudsman cannot question the merits of these decisions.
11. And if Mr X believes the public highway is damaged or not being maintained to the appropriate standard, he has the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring it up to standard. Only the courts can decide whether the Council has maintained the highway properly. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mr X to go to court, so we would not investigate for this reason too.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council has responded to his concerns, and it is reasonable for him to use the alternative court remedy which is available.

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Investigator's decision on behalf of the Ombudsman