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Herefordshire Council (20 001 618)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 08 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council refuses to uphold its statutory duty to keep the highway free from obstacles. The Ombudsman will not investigate this complaint as it is outside his jurisdiction. Mr X has a remedy in court.

The complaint

  1. Mr X complains the Council refuses to carry out its statutory duty and ensure the highways where he lives are free from obstructions.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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

  1. I considered the information provided by Mr X.

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What I found

  1. Mr X complains the Council is failing to uphold its statutory duty and ensure the highway verges where he lives are free from obstructions and encroachments.
  2. The Council says it inspects the highway. Where there is a significant risk to the public or highway user it takes action as set out in its highway maintenance plan.
  3. Highway authorities have a legal duty to remove obstructions which prevent the public from using rights of way in their area.
  4. Section 130 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to remove an obstruction from the highway. If the highway authority fails to remove the obstruction the person may apply to the magistrates’ court for an order to have it removed.
  5. Because he has this right to go to court to resolve the issue, Mr X’s complaint is outside the Ombudsman’s jurisdiction.
  6. I have discretion to investigate the complaint even though Mr X has this legal right. But it is my view it is reasonable that he should take his complaint to court because the court has powers to instruct the Council to remove the obstructions. The Ombudsman has no such powers.

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Final decision

  1. I will not investigate this complaint. It is outside the Ombudsman’s jurisdiction as Mr X has a remedy in court.

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Investigator's decision on behalf of the Ombudsman

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