Summary: The Ombudsman will not investigate this complaint that the Council will not repair a highway wall. There is no evidence of fault by the Council and the complainant can seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has not repaired a highway wall which runs along land on which he keeps livestock. He is worried livestock will escape on to the road if the Council does not repair the wall.

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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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

7. I have considered what Mr B said in his complaint which included the Council’s response to his concerns.

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What I found

8. The Council has explained to Mr B that the wall is some way from the carriageway, does not affect its structural integrity and poses no risk to highway users. It therefore considers any repair work to be a low priority and cannot give a date when it will carry out repairs.
9. The Council also says it is Mr B’s responsibility to ensure animals cannot get on to the highway and he could be guilty of an offence under the Highways Act 1980 if they do.

Analysis

10. It is for the Council to decide what priority to give to any highway works. While I understand Mr B disagrees with the Council’s decision not to give the works priority, I have seen nothing to suggest fault in how it has considered the matter. Therefore we cannot question the merits of the Council’s decision.
11. Further, Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
12. If Mr B considers the Council is not keeping the highway in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
13. I consider it would be reasonable for Mr B to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

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Final decision

14. I have decided we will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council and Mr B can seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman