The Ombudsman's final decision
Summary: We cannot investigate this complaint about highway maintenance. This is because Mr Y has used his right to serve a notice on the Council through the Magistrates Court so the law says we cannot investigate.
The complaint
Mr Y complained the Council has failed to repair a footpath in his area which he says is covered in vegetation and has narrowed. Mr Y is concerned this prevented disabled people from accessing the area.
The Ombudsman’s role and powers
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y complained to the Council in the summer of 2022, and provided further information to the Council in September. The Council then responded to Mr Y’s complaint in November, following which Mr Y approached us as he remained unhappy with the Council’s response. Within the complaint response the Council referred to Mr Y having already served a section 56(1) of the Highways Act notice.
This is where, if a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. It can also consider whether the Council has classified the road correctly where this is disputed.
If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
As Mr Y has already served a notice in relation to the footpath’s maintenance, the law says we do not have the power to investigate his complaint, as explained in paragraph two. Therefore, we cannot investigate.
Final decision
We will not investigate Mr Y’s complaint because Mr Y has used his right to serve a notice on the Council through the Magistrates Court so the law says we cannot investigate.
Investigator's decision on behalf of the Ombudsman