Summary: Mr X complained about the quality of resurfacing work on a road where he lives. The Council is not at fault for the way it monitored the work and assessed Mr X’s reports of road defects. In addition, if Mr X believes the road is not up to standard it is open to him to apply to a magistrates’ court for an order requiring the Council to bring it up to standard.

The complaint

1. Mr X complained about the quality of resurfacing work on the road where he lives. He complained the Council failed to monitor the completed work to ensure it was carried out to the required standard. He said holes appeared and the contractor failed to carry out clean-up work leaving the road in an unsuitable condition. In addition, he complained about the standard of the work around a manhole cover outside his property and the noise disturbance caused to him by this.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
5. 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)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(I), as amended)

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How I considered this complaint

7. I have considered the information provided by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries.
8. I gave the Council and Mr X the opportunity to comment on a draft of this decision.

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What I found

9. In August 2018, the contractor, acting on behalf of the Council, carried out a surface dressing treatment to the road on which Mr X lives. This was a preventative maintenance treatment with a thin layer of stone chippings laid on a new coating of bitumen. In Autumn 2018 Mr X reported a hole had appeared in the carriageway and raised concerns about the quality of the work.
10. In December 2018, as part of a routine performance check, the Council visited the site and found no issues.
11. In February 2019, Mr X reported the road surface around a manhole cover had broken up. This meant it created a noise when vehicles drove over it.
12. The Council asked the contractor to inspect the site. The contractor inspected the work and identified the road needed sweeping. It identified small areas of remedial work were required to some bends and areas of stress which it agreed to incorporate in the next season’s works programme. A Council officer also inspected the site and agreed with the contractor’s view.
13. Later in February 2019, Mr X complained to the Council about the quality of the resurfacing work as areas had broken up and holes were appearing. He also complained about the difficulty in reporting his concerns about the quality of the work. He complained clean up work was not carried out and the Council had no system in place for monitoring the quality of the work.
14. A Council officer visited the site as part of the stage 1 complaint investigation. They confirmed there were a very few areas requiring remedial work but which were not of any concern. They noted a manhole close to Mr X’s property was suffering from some failure of the surrounding surface but it did not clatter when driven over and was not dangerous. The Council arranged for a sweep of the road to take place.
15. The stage 1 response, in March 2019, confirmed there were areas of stress but the road was not unsafe and so no immediate works were required. It had assessed Mr X’s reports about the quality of the highway as low priority defects. It had no concerns about the overall quality of the work. It noted the surface round the manhole was failing but it did not present a significant risk. It said this would continue to be monitored. It did not uphold Mr X’s complaint.
16. Mr X remained unhappy and the Council considered his complaint at stage 2 of its complaints process. The stage 2 response, in April 2019, reiterated the Council had no concerns about the quality of the work. It said the identified defects would be addressed through the normal seasonal dressing programme. The Council explained its decision on the priority of the works was based on an inspection not on how the reported defect was logged.
17. In May 2019 the Council carried out works to repair the road surface round the manhole cover.
18. In September 2019 the contractor carried out some remedial works to the highway. The Council says there are a few areas of stress remaining but it is unlikely further works to these areas would be effective and this is accepted as normal and acceptable in relation to surface dressing treatments. It considers the road is safe.

Findings

19. The Council has a duty to maintain the highway and carry out regular maintenance to keep it free from hazards. The Council can carry out widespread resurfacing works as it sees fit. It can contract out its highways maintenance functions but remains responsible for the condition of the highway.
20. Mr X is unhappy with the standard of the resurfacing work carried out by the contractor. However, the Council has no concerns and the contractor has carried out remedial works to those areas where the surface has failed.
21. The Council prioritises works to the highway based on the risk to safety in line with the Department of Transport’s Code of Practice for Highway Inspections. For reports about surface treatment issues the Council says it usually asks the contractor to investigate this in the first instance. Any failures on site as a result of their works are dealt with as remedial works in the next season.
22. The Council logged Mr X’s reports and assigned them to a Council officer who asked the contractor to inspect the site. The Council also inspected the site and was satisfied with the works carried out. Both identified the need for a sweep and an area requiring remedial works. The contractor has since carried out remedial works in line with the Council’s procedures. It was for the Council to decide how to prioritise Mr X’s reports and it did so in line with its procedures. Mr X did not agree with the Council’s decision to assess his reports as low priority. However as there was no fault in how the Council reached its decisions about how it categorised the reports I cannot question the decisions themselves.
23. Mr X also complained about the noise caused by defects around a manhole cover. The Council inspected the site and assessed this work as low priority as it was not causing a safety issue. Mr X was unhappy the Council had not recognised the nuisance this caused. However, the Council carried out works to address this in May 2019 so there is no outstanding injustice to Mr X.
24. If Mr X believes the Council is not repairing the road properly it is open to him to go to court. Under section 56 of the Highways Act 1980, if someone believes the highway is not being maintained to the appropriate standard they can apply to the Magistrates’ Court for an order requiring the authority to take whatever action is needed to bring the highway up to standard. The court has the power to order a council to carry out work whereas the Ombudsman does not.
25. Mr X considers the work was a waste of taxpayers’ money. It is for the Council to decide its own strategy for maintaining the highways and this is not something I can take a view on. The Local Government Act 1974 prevents the Ombudsman from investigating a complaint about a matter which affects all or most of the people who live in a council’s area. The way in which a council spends public money affects all council tax payers in the council’s area and so is outside our jurisdiction.
26. Mr X said it was difficult to report the defects with the road surfacing work. The Council has an online system to report defects with the road. From September 2019, the Council has revised its system to use identifiable icons to help people navigate the system to report a problem. The Council says Mr X reported his concerns correctly and they were correctly logged. The Council is not at fault.

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Final decision

27. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman