Summary: The Ombudsman will not investigate Mrs X’s complaint about the state of the pavement near her home. This is because it is a highway maintenance matter which the courts are better placed to deal with.

The complaint

1. The complainant, Mrs X, complains lorries are driving over the pavement to reach the site of a new development and causing damage to the surface. Mrs X is concerned the pavement is a trip hazard and that the Council has not carried out proper inspections.

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The Ombudsman’s role and powers

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

3. I reviewed Mrs X’s complaint and the Council’s final response. I shared my draft decision with Mrs X and invited her comments.

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What I found

4. Mrs X contacted the Council to report lorries crossing the pavement to access a new development near her home. The Council investigated but decided the issue resulted from issues with the driver(s) error and would resolve itself. Mrs X is not satisfied with its investigation and is concerned about damage to the pavement. She is concerned it has become a trip hazard and that the Council has not carried out proper health and safety checks to determine whether repairs are necessary.
5. The Ombudsman will not investigate this complaint. The Council’s role as highway authority is to ensure the highway, including any publicly-maintainable roads and pavements, do not fall into disrepair. The Highways Act 1980 is not prescriptive about the measures a council must take or how and when the council must inspect the highway for defects.
6. The issue in this case is Mrs X’s concern that members of the public may trip over the damaged pavement and fall, causing injury. But if Mrs X is concerned the pavement has fallen into disrepair and that the Council’s inspections are not adequate as it has decided not to carry out repairs, she may take the matter to court. The procedure for this is set out at Section 56 of the Highways Act 1980 and it does not require legal representation. Mrs X would first need to serve notice on the Council and, if it accepts it is liable to maintain the road but does not act, Mrs X may apply to the court for an order requiring the Council to carry out repairs. The courts are better placed to determine whether the Council has fulfilled its duty to maintain the highway as we cannot interpret the law to say the Council should do more.

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Final decision

7. The Ombudsman will not investigate this complaint. This is because Mrs X’s claimed injustice relates to the state of the public highway and it would be reasonable for her to raise this at court.

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Investigator's decision on behalf of the Ombudsman