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

The complaint

1. The complainant, Mr X, complains the Council has failed to maintain the roads around the estate on which he lives. He says this is a safety hazard and is likely to impact on the value of property in the area.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. I reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and invited his comments.

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What I found

6. Mr X has complained about the state of the roads near his home since 2016. In response, the Council has explained to Mr X it inspects the roads every six months for defects and carries out repairs as required. But Mr X believes the Council has not done enough and that the roads are in a state of disrepair. The Council has explained that while there may be cosmetic issues there is insufficient damage to meet the threshold for repairs.
7. The Ombudsman will not investigate this complaint. Any concerns Mr X has about the way the Council dealt with the highway disrepair issue between 2016 and 2018 date to more than 12 months before his complaint to the Ombudsman; they are therefore late.
8. The Ombudsman has discretion to investigate late complaints but the substantive issue in this case is a matter for the courts and not for us. I will not therefore exercise our discretion in this case.
9. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. 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’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
10. The Ombudsman cannot interpret the law to say the Council has failed to fulfil its duty but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.

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Final decision

11. 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