Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has not properly maintained the public highway. This is because it would be reasonable for him to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council failed to take proper action to maintain the public highway. Mr X was injured in an accident on the road and refers to two other cases including one leading to the death of a member of the public.

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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)

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How I considered this complaint

4. I reviewed Mr X’s complaint, shared my draft decision with him and considered his comments.

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What I found

5. Mr X believes the Council should do more to deal with issues of highway disrepair. He says the Council must obtain more evidence to show it has properly inspected roads and suggests fitting cameras to cars for this purpose. He also believes the Council should do more when handling personal injury claims resulting from accidents on its roads and believes it should perform spot checks to ensure faults are reported and addressed.
6. The Ombudsman will not investigate this complaint. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways, including pavements. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. Although the Council is under a duty to maintain the highway the level of maintenance required is not defined in law.
7. It is not for the Ombudsman to interpret the law and decide whether the Council has done enough to fulfil its legal obligations. The Council must decide what action is needed and how to fulfil its duty. We cannot say that it should do more or that, had it done so, Mr X’s injury (or those of any other member of the public) would have been avoided.
8. If Mr X considers the Council has not met its duty and that an area of the highway is out of repair he may serve notice on the Council under Section 56 of the Highways Act 1980. If it does not act, he may then apply to the court for an Order requiring the Council to carry out repairs. He may also seek compensation for his injuries through the courts.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman