Summary: The complainant says the Council’s failure to maintain a cycle route has led to injury and damage to property. The Ombudsman will not investigate because the complainant can reasonably seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has failed to maintain a cycle route for several years. He says this has led to personal injury and damage to his property.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I have considered what Mr B said in his complaint.

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What I found

6. Mr B complained to us in 2016 about the Council failing to maintain the cycle route. We decided then we would not investigate because it was reasonable for him to seek a remedy in court under Section 56 of the Highways Act 1980. That remedy still exists and I see no reason we should reconsider the issue now.
7. With regards to personal injury and damage to property, Mr B’s complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
8. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.

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Final decision

9. I have decided we will not investigate his complaint because Mr B has remedies in court which it is reasonable for him to use.

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Investigator's decision on behalf of the Ombudsman