Summary: We will not investigate this complaint about highway disrepair. This is because the courts are better placed to decide the issues raised.

The complaint

1. Mr X complains the Council have held him liable for damage to the grass verge by his house caused by a skip driver. He says the damage is not a safety risk and does not need to be repaired. He also complains the Council has damaged the footpath itself but refused to repair this damage.

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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 impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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 Ombudsman’s Assessment Code.

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My assessment

6. 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. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not.  It is therefore open to interpretation.
7. We cannot interpret the law to say the Council has failed to fulfil its duty to repair the section of the footpath Mr X refers to but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above. 
8. While the above does not provide an alternative remedy for the Council holding Mr X liable for the damage to the verge, this is not an issue we can decide. Section 133 of the Highways Act 1980 allows the Council to repair damage to any part of the public highway caused by work on adjoining land and to recover its reasonable expenses in doing so. It is not for us to say whether Mr X is liable for the damage or to decide what amount is reasonable to recover from him. These are matters for the courts.
9. If therefore Mr X disputes his liability, the need to carry out the work or the costs involved, he may decline to pay the amounted requested by the Council and present his arguments in defence of any claim by the Council at court. The court may then consider these arguments and decide if, and what amount, Mr X should pay.

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Final decision

10. We will not investigate this complaint. This is because the courts are better placed to deal with the issues Mr X has raised.

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Investigator's decision on behalf of the Ombudsman