Decision : Closed after initial enquiries
Decision date : 24 Mar 2017
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint about the Council’s refusal to take action about a drain cover causing vibration in Mr X’s home. Mr X has the right to complain to the court.
- Mr X complains the Council refuses to repair a concrete drain housing in the road outside his home. He says whenever a car passes over it a knocking noise vibrates through his home.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault.
How I considered this complaint
- I considered the information provided by Mr X and the Council’s responses. He had the opportunity to comment on the draft version of this decision.
What I found
- Mr X complains there is a loose concrete block housing a drain in the road outside his home. He says this means that when cars drive over it, a knocking noise vibrates through his home.
- Mr X has a right to resolve his complaint in court. Section 56 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to confirm that a way (the roadway including any footpaths) is a highway and that it is liable to maintain it. If the highway authority disputes that it is liable to maintain the way, or if it does not respond within one month, the person may apply to the Crown Court. It will determine if the highway authority is liable for the maintenance, and if it is, require it to put it in proper repair within a reasonable period. If liability is not in contention, application may be made to a magistrate’s court.
- Mr X believes the Council has wrongly decided there is no need to repair the highway. If he believes the highway is out of 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.
- Because he has this right to go to court to resolve the issue, Mr X’s complaint is outside the jurisdiction of the Ombudsman.
- I have discretion to investigate the complaint even though Mr X has this legal right. I have considered if I should exercise this discretion in this case.
- The Council says it has inspected the drain housing and driven across it. No knocking was detected. It does not consider any repairs necessary.
- The role of the Ombudsman is to consider if there has been administrative fault in a council’s actions which has led to significant personal injustice to a complainant. I have seen no evidence of fault in its actions. It properly considered if action was necessary but decided this was not the case. This was a decision it was entitled to make. In the absence of fault, the Ombudsman has no powers to criticise a council’s actions.
- The Council has inspected the drain cover housing and decided no action is necessary. This is a decision it is entitled to make. The Ombudsman cannot criticise a Council where there is no evidence of fault in its actions. For this reason I will not exercise discretion and investigate the complaint. It is reasonable that Mr X should take his complaint to court.
Investigator's decision on behalf of the Ombudsman