Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating.

The complaint

1. Dr Y complained the Council has failed to repair a pavement which has been closed for over two years. Dr Y says this causes her an inconvenience, as well as other pedestrians, who have to either cross the road or walk around the part of the footpath which is closed along the road itself.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We 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)
3. We 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. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information Dr Y provided and the Ombudsman’s Assessment Code.

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My assessment

5. The Council has explained in its complaint response that it has been engaged with a developer since May 2022, following a large and unsupported excavation on the developer’s private land next to the footpath, which led to the collapse of the footpath in October 2022.
6. For public safety, the Council closed the footpath in October 2022 and the Health and Safety Executive issued a prohibition notice to the developer to prevent further works at the site until safeguards for the public footpath has been agreed with the Council. This has led to the path being closed for over two years.
7. The Council has explained that it has sought a temporary retaining wall on the adjoining land belonging to the developer to support the footpath, which would, it believes, resolve the issue. It says it has served notice on the developer which will require it provide a proposal for the construction of a temporary wall next to the footpath.
8. However, as the developer has failed to respond to this notice, the Council are now seeking advice about further legal proceedings in the matter. The Council’s response to Dr Y’s complaint explains that as works need to be carried out on private land by the developer, it is not able to carry out the work needed to construct a wall to support the pavement and it therefore cannot, as yet, repair the footpath safely.
9. While Dr Y may be unhappy and frustrated at the continued closure of the footpath, this has been done to protect the public. The Council has acted to use its powers, where it is able and is continuing to consider its pursuit of the necessary works which need to be undertaken by the developer. As the Council has explained its rationale why it is unable to simply carry out the work itself and has acted to try to resolve the issue through the use of as s167 notice, there is not enough evidence of fault to justify investigation. We will not investigate.

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Investigator's decision on behalf of the Ombudsman