Summary: We will not investigate this complaint about the Council’s maintenance of a cycleway, or an associated claim for damaged property because of poor road surface treatment. This is because X has an alternative legal remedy available to them, to address their complaints. And given only the courts can decide on both aspects, and we could not do so in either case, it is reasonable to expect them to use their legal remedy.

The complaint

1. X complained the Council was at fault in not properly maintaining or gritting, a cycleway they use. They said because of this they came off their pedal cycle, causing damage to their property. X also said the Council’s communication about this matter was poor.
2. They now want the Council to hold its insurers accountable and improve the cycleway to avoid a recurrence.

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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)
5. If a person considers that a highways authority has failed to maintain a highway, it is usually reasonable for the person affected to apply to the Magistrates Court for an order to be made under the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. There might be some cost to court action. However, that does not mean it is unreasonable to take court action.
6. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. X contacted the Council following an incident, where they came off their pedal cycle. They said this incident occurred because the Council had not properly gritted the surface of the cycleway. They also expressed dissatisfaction at the cycleway surface generally.
10. The Council replied to X’s concerns and indicated it had treated the surface of the cycleway and said it did not believe the surface was defective. It also directed X to its insurers for them to make a claim for compensation.
11. X said Council told them it had a winter service plan, to ensure its cycleways were properly treated for winter and ice conditions. X said he had been unable to obtain a copy of this despite asking repeatedly. X was concerned this may mean there is a possibility of either them, or other cyclists, falling off their pedal cycles, because the Council does not have an adequate service plan.
12. I will not investigate this complaint.
13. 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.
14. However, there is an alternative legal remedy available to X, to apply to the Magistrates Court for it to make an order, requiring the Council to carry out the repairs needed to the cycleway that X is concerned about. And given it is only the court that can require this, unlike us, it would be reasonable to expect X to use this alternative legal remedy to achieve what they are looking for.
15. Neither could I consider X’s claim for compensation, in lieu of damaged property. This is because only a court can decide on liability and award compensation for damage to property. And because we cannot achieve this outcome, even if we were to investigate, it is reasonable to expect X to make a civil claim against the Council.
16. I understand X’s concern about the possibility of future harm, because of the issues they raised, highlighted at paragraph eleven. However, this does not change the fact that X has a legal remedy available to them, to address their substantive complaint. Additionally, the Ombudsman cannot investigate or consider a complaint about events that may happen in the future. Our role is to investigate those complaints where fault has caused an injustice.
17. Finally, I will not investigate how the Council responded to X’s complaint. This is because it is not a good use of public resources to investigate how the Council handled this matter, where we cannot look at the substantive complaints.

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Final decision

18. We will not investigate X’s complaint because they have an alternative legal remedy which is reasonable for them to use.

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Investigator's decision on behalf of the Ombudsman