Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for Mr X to serve notice on the Council and take the matter to court.

The complaint

1. Mr X complains the Council failed to carry out repairs to several unsafe paving slabs, resulting in a serious trip hazard.

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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 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

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

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My assessment

6. Mr X has reported several loose paving slabs on a stretch of pavement which he says is part of the public highway. The Council says it attended and fixed an issue with paving slabs but that another report concerned an area of paving which was not part of the public highway. Mr X disputes this but says the Council failed to respond to his correspondence and complaints about the matter.
7. It is not for us to decide if the paving slabs referred to are part of the public highway or if they are out of repair. This is a matter for the courts.
8. Mr X has the right to serve notice on the Council under S56 of the Highways Act and if the Council accepts the section of pavement is part of the public highway he may apply to a Magistrates’ court for an order requiring it to take whatever action is needed to bring the highway up to standard.
9. If the Council maintains the section of pavement is not part of the public highway Mr X may apply to the Crown court to decide if this is correct and if the pavement is out of repair.
10. Only the courts can decide whether the section of pavement concerned is part of the public highway and whether the Council has maintained it properly. I have seen nothing to show it would be unreasonable for Mr X to use this process and I will not therefore exercise our discretion to investigate the complaint.
11. While Mr X is also unhappy with the Council’s failure to respond to his correspondence and complaint it is not a proportionate use of our resources to investigate these issues when we are not investigating the substantive issue.

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Final decision

12. We will not investigate this complaint because it is reasonable for the complainant to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman