Summary: We will not investigate Mrs C’s complaint about the Council not maintaining the road where she lives. This is because it is reasonable for Mrs C to pursue this matter at court.

The complaint

1. Mrs C complains the Council is failing to maintain the road where she lives. Mrs C says repairs are not done properly and the whole road needs to be re-surfaced. Mrs C says her vehicles have been damaged and other vehicles often skid onto her land after hitting potholes. Mrs C says this issue is causing her considerable stress but the Council does not do anything about it.

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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 Act 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 Mrs C.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
9. Mrs C may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs C to do this.
10. The court is in the best position to decide the issue Mrs C complains about. The court has the relevant expertise and knowledge to decide whether the Council has met its legal duty to maintain this highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
11. So, we will not investigate this complaint.

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Final decision

12. We will not investigate Mrs C’s complaint because it is reasonable for her to apply for an order from the court.

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Investigator's decision on behalf of the Ombudsman