The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s failure to maintain the public highway and remove overgrown vegetation from the footpath. This is because the Highways Act 1980 provides an alternative remedy for the issue which it would be reasonable for Mr X to use.
The complaint
The complainant, Mr X, complains the Council has failed to take action to resolve his concerns about the state of a road and overgrown vegetation along a footpath.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
The Highways Act 1980 sets out the Council’s duties regarding highway maintenance and dealing with obstructions to footpaths (Sections 41 and 154, respectively). The Act also provides a mechanism to deal with disputes over inaction by a local authority.
If Mr X believes the Council has failed to comply with its duty to maintain the road he may serve notice on it under Section 56 of the Act. If the Council fails to carry out any repairs he may then ask the court to consider his concerns.
Sections 130A and 130B of the Act provides a similar process for dealing with complaints about obstructions to footpaths resulting from vegetation. Mr X may serve notice on the Council under Section 130A and if it fails to act he may ask the court to make an order requiring action under Section 130B.
The court can consider whether the Council has fulfilled its duties on both points and the process is relatively easy to use. We therefore consider it reasonable for Mr X to use it in this case.
I understand Mr X would also like the Council to widen the footpath but there is no requirement for it to do so. While councils often have policies regarding the width of new footpaths it is under no duty or obligation to apply these policies retrospectively.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman