Summary: The Ombudsman will not investigate Mrs X’s complaint about the state of the road outside her house. If Mrs X believes the Council has failed to properly maintain the road, and that she had suffered damage to her property as a result, it would be reasonable for her to take the matter to court.

The complaint

1. The complainant, Mrs X, complains about the state of the public highway outside her house. She says this is causing damage to her driveway and is a danger to passers by.

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The Ombudsman’s role and powers

2. 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

3. I reviewed Mrs X’s complaint and the Council’s response. I shared my draft decision with Mrs X and invited her comments.

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What I found

4. Mrs X complains the public highway outside her house has large potholes which fill with dirt and water whenever it rains. She says this flows down onto her driveway, causing damage. She reported the matter to the Council but it did not find any defects which met the threshold for further investigation or action. Mrs X is not satisfied with the Council’s response.
5. The Ombudsman will not investigate this complaint. 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.
6. 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. Mrs X may serve notice on the Council and, if it does not act, she 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 Mrs X wishes to pursue this matter it would be reasonable for her to follow the process set out above. She may also make a claim for any damage to her property which she considers results from the Council’s failure to properly maintain the road.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman