Summary: We will not investigate Mr X’s complaint about the Council’s handling of highway disrepair issues. This is because the law provides an alternative remedy for the issue which it would be reasonable for Mr X to use and any remaining issues concerning the Council’s correspondence and handling of his reports have not caused Mr X significant injustice.

The complaint

1. The complainant, Mr X, complains the Council has failed to properly investigate or act on cases of highway disrepair. He also complains it has failed to make utility companies and landowners deal with repair issues they are responsible for, resulting in the use of public money and resources to deal with the issues unnecessarily. Mr X believes the Council’s process for reporting is not fit for purpose and is unhappy the Council has not dealt with his complaints about the matter.

Back to top

The Ombudsman’s role and powers

2. 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, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

Back to top

How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
9. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.

10. We cannot interpret the law to decide if the Council has fulfilled its obligations under Section 41 the Highways Act 1980 in this case. However, the Act provides a mechanism for Ms X to raise the matter with the court and seek a view on whether it has done enough. This is set out at Section 56 of the Act.
11. If Mr X believes the Council has failed to properly maintain the highway he may serve notice on the Council and if it does not act he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
12. While I appreciate Mr X is concerned the Council has not responded to all of his correspondence and reports this has not caused him significant injustice separate from the points he could take to court and we will not therefore investigate this complaint separately.
13. We cannot determine if the Council has wasted public funds on carrying out repairs to the public highway which it is not responsible for as this issue concerns the use of taxpayer money and as such is something which affects all or most of the people in its area.
14. Mr X is also unhappy about the way the Council dealt with his complaint but the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either. (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

Back to top

Final decision

15. We will not investigate this complaint. This is because it would be reasonable for Mr X to refer any highway disrepair issues to the court under the process provided in Section 56 of the Highways Act 1980 and Mr X’s concerns about the way the Council has dealt with his reports and complaints have not caused him significant enough injustice to warrant investigation.

Back to top

Investigator's decision on behalf of the Ombudsman