Summary: We will not investigate Mr B’s complaint that the Council has not taken action about highway safety and accessibility issues on his road. This is because it is reasonable for Mr B to apply to court for an order requiring the Council to do work to the highway.

The complaint

1. Mr B says the pavement on his road and the dropped kerb outside his home are significantly higher than the adjoining road surface. Mr B says this is unsafe and it is difficult to access his property, particularly for people using mobility aids. Mr B complains the Council has wrongly decided no action is needed to the highway. Mr B also complains the Council took eight months to respond to his complaint about this issue.

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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 Mr B and have considered the Ombudsman’s Assessment Code.

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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 importantly, the level of maintenance and threshold for repair or intervention is not set out in law and is open to interpretation.
6. We generally take the view the courts are in the best position to decide disputes about whether a local highways authority has complied with its statutory duty to maintain a safe highway.
7. The Council has investigated the issue Mr B complains about and has decided no works to the highway are needed.
8. Mr B may challenge the Council’s decision at court.
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 road, the person may apply to the crown court for such an order.
11. Mr B may use this process to try to get the Council to make changes to this section of road. I find it is reasonable for Mr B and any other affected residents to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain a safe highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
12. So, we will not investigate Mr B’s complaint about the dropped kerb and pavement outside his home.
13. Because we are not investigating the substantive issue complained about, an investigation solely into the Council’s handling of Mr B’s complaint is not justified.

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Final decision

14. We will not investigate Mr B’s complaint because it is reasonable for him to apply to court for an order requiring the Council to undertake work to the highway.

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Investigator's decision on behalf of the Ombudsman