Summary: We will not investigate this complaint about the condition of a footpath where the complainant lives. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to pursue a court remedy.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council has failed to adequately respond to his concerns about the differing levels of a footpath by his home.

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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. 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)
4. The law also 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

5. I considered information provided by Mr X and the Council, which included its complaint responses.
6. I also considered our Assessment Code.

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My assessment

7. The Council has investigated the defect reported by Mr X, including digging a trial pit in April 2022, and an excavation and reconstruction of the footpath in December 2022. I understand Mr X remains dissatisfied with the varying level of the footpath.
8. The Highways Act 1980 sets out the Council’s duties regarding highway maintenance at Section 41, and provides a mechanism to deal with disputes over inaction by a local authority at Section 56. This allows Mr X to serve notice on the Council and, if it refuses to take further action, he may ask the court to consider the issue. The court can decide whether the Council has fulfilled its obligations and, if it decides it has not, it can order the Council to carry out repairs.
9. With reference to paragraph 4 above, I consider it reasonable to expect Mr X to use this relatively simple legal remedy if he believes the Council should undertake further work to the footpath, so the Ombudsman will not investigate his complaint.

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Final decision

10. We will not investigate Mr X’s complaint because he has a court which it is reasonable for him to use.

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Investigator's decision on behalf of the Ombudsman