Summary: The Ombudsman will not investigate Mr B’s complaint the Council has failed to properly maintain the road surface in his street. Further consideration of the complaint is unlikely to find fault by the Council and it is reasonable for Mr B to use the legal remedy available to him.

The complaint

1. The complainant, whom I shall call Mr B, complains the road surface in his street is in poor condition, with potholes and a damaged surface. Mr B says this causes vibration and he wants the Council to resurface the road.

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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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered the information Mr B provided and the complaint responses from the Council. I sent a draft decision to Mr B and invited comments before I made my final decision.

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What I found

6. Mr B has explained the road surface is in poor condition. He says his road is on a bus route and the poor road surface leads to vibration and loss of enjoyment of his home. Mr B says the Council has repaired roads nearby, but not his street and he wants the Council to carry out resurfacing work.
7. In response to Mr B’s complaints, the Council has explained it has inspected the road when it has received reports about its condition. The Council says it will repair potholes where they are more than 40mm deep but has no plans to resurface the road this financial year. The Council accepts the road would benefit from resurfacing but has explained it has to prioritise the work it carries out and Mr B’s road is not a priority.
8. While Mr B disagrees with the Council’s decision, the Ombudsman can only criticise the Council if its decision was made with fault. Further consideration of the complaint is unlikely to find fault because officers have considered the reports they have received, inspected the road surface and decided it does not require intervention.
9. The Council has also explained why it considers vibration from passing traffic is unlikely to cause damage to Mr B’s property. The Council has said it will consider any supporting evidence Mr B can provide, such as a structural report from a suitably qualified engineer.
10. The Ombudsman would not investigate a complaint about damage to property caused by vibration on the highway. The courts are better placed to consider whether the Council has liability for any damage.
11. Under Section 41 of the Highways Act 1980, the Council has a duty to maintain public highways. Whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretation of the law. If Mr B believes the Council has failed in its duty to maintain the highway, he can serve a notice on the Council to carry out repairs. Should it fail to do so, Mr B can apply to the magistrates’ court for an order under Section 56 of the Highways Act 1980, requiring the Council to take action by a set date. The Council would be bound by any order made by the magistrates’ court. The Ombudsman has no powers to order the Council to carry out work to the public highway. It is therefore reasonable for Mr B to use the legal remedy available to him if he wants to pursue the matter. The court can provide the outcome Mr B seeks and the Ombudsman cannot.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because further consideration of the complaint is unlikely to find fault by the Council and it is reasonable for Mr B to use the legal remedy available to him.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman