The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council failing to remove soil and vegetation which has reduced the width of a pavement. There is not enough evidence of fault in the way the Council responded to the complainant’s concerns, and it is reasonable to expect him to use the court remedy available to him.
The complaint
Mr X complains the Council is failing to properly maintain a section of pavement near where he lives. He says soil and vegetation have encroached on to the pavement, reducing its width and making it unsafe to walk along, particularly for someone with mobility issues.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) With reference to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) And in relation to the second bullet point above, 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 Council, which included their complaint correspondence.
the Council’s ‘Highways Maintenance Operational Plan’.
the Ombudsman’s Assessment Code.
My assessment
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
The Council inspected the pavement on three occasions in mid-July 2023, and reached the view that it did not meet the threshold for intervention. It said it would continue to monitor the situation through its routine highway inspections.
This was a professional judgement the Council was entitled to reach. I find there is not enough evidence of fault in the way it has reached this decision, so the Ombudsman will not start an investigation.
If Mr X thinks the condition of the pavement has deteriorated since the inspections in 2023, then he could report this again to the Council. If he disagrees with any further decision not to undertake works, then the Ombudsman would normally take the view that the courts are in the best position to decide whether a highways authority has met its statutory duty to maintain a highway.
In that regard, a person can apply to the courts for an order to be made under section 56 of the Highways Act 1980, requiring the highway authority to carry out works. I consider it reasonable to expect Mr X to use this alternative remedy because the courts are in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work. So, with reference to paragraph 5 above, the Ombudsman will not investigate the complaint for this reason too.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council responded to his concerns, and it is reasonable to expect him to use the court remedy available to him.
Investigator's decision on behalf of the Ombudsman