Summary: We will not investigate Mr X’s complaint about the state of the road. This is because the law provides an alternative remedy or the issue and it would be reasonable for Mr X to use it in this case.

The complaint

1. The complainant, Mr X, complains the Council has failed to repair a dip in the road which causes damage to his vehicle when he drives out onto the public highway.

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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. 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Caselaw has established this duty applies to blocked drains which run under the highway as well as defects in the surface of the highway itself.
6. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. However, while 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.
7. 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.
8. 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.
9. The courts can also consider any claim for damage to Mr X’s vehicle. As part of any claim the court must consider whether the Council can rely on the defence provided by Section 58 of the Highways Act 1980 and it would not be appropriate for us to deny the Council the ability to exercise this defence at court.

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Final decision

10. We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman