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Northumberland County Council (16 017 532)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 22 Mar 2017

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate this complaint about the Council’s failure to maintain the highway. The complainant can seek a remedy in court both in relation to maintaining the highway and damage to his vehicle.

The complaint

  1. The complainant, who I refer to here as Mr B, has complained the Council has failed to maintain the highway near to home and business premises. He says this has led to damage to his vehicle and a loss of business

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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

  1. I have considered what Mr B said in his complaint.

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What I found

  1. Mr B says he has reported several defects in the highway to the Council but it has failed to carry out repairs.
  2. Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
  3. If Mr B considers the Council is not keeping the road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
  4. I consider it would be reasonable for Mr B to take his complaint to court because the court has powers to instruct the Council to carry out the work. We have no such powers.

Damage to vehicle

  1. Mr B’s complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
  2. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. I have seen no exceptional reason Mr B cannot do this

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Final decision

  1. Mr B can seek a remedy in court for both the issue he has raised. The restriction I describe at paragraph 3 applies and so we will not investigate this complaint.

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Investigator's decision on behalf of the Ombudsman

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