Summary: We will not investigate this complaint about the Council’s failure to resolve issues with the public highway near Mr X’s home. This is because the issues have not caused Mr X significant injustice and if he wishes to pursue them it would be reasonable for him to take the matter to court.

The complaint

1. Mr X complains the Council has failed to carry out necessary repairs to the public highway. He says a cast iron bollard has been knocked over and causes an obstruction to the public footpath, another has been damaged and is at risk of falling and double yellow lines are faded and obscured by shrubs and moss.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. 
8. Section 130 of the Act requires the Council to assert and protect the public’s right to the use and enjoyment of any highway and to remove any obstruction which interferes these rights.
9. Where a member of the public believes the Council has failed to comply with its duties under the Highways Act 1980 they may take the matter to court. The court can then decide whether the Council has complied and, if not, it can order the Council to take action to resolve the issue.
10. Mr X’s complaint refers to an obstruction to the footpath, possible danger from a damaged bollard and faded and obscured double yellow lines. If he believes the Council’s failure to resolve these issues breaches its obligations under the Highways Act 1980 it would be reasonable for him to go to court.
11. It is not for us to try to interpret the law to decide whether the Council has complied with its obligations under the Highways Act 1980 and I have in any event seen no evidence to show the Council’s actions in this case have caused Mr X significant injustice. We will not therefore investigate the matter further.
12. Mr X is also unhappy with the way the Council dealt with his complaint.  But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about.  We will not therefore investigate this issue separately.

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Final decision

13. We will not investigate this complaint. This is because the issues Mr X complains about have not caused him significant injustice and the law provides him with a remedy at court for these issues which it would be reasonable for him to use.

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Investigator's decision on behalf of the Ombudsman