Summary: The Ombudsman will not investigate Ms B’s complaints about the condition of the road near her home. It is reasonable to expect Ms B to use her right of remedy in the courts if she believes the Council has failed to meet its duty to maintain the highway.

The complaint

1. The complainant, whom I shall call Ms B, complains the road she lives on is in a poor state of repair. This creates noise and Ms B is concerned about possible structural damage to her home. The Council had initially said it would resurface the road in June 2019 but has now said it has no immediate plans to do so, as other roads have a greater priority.

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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 have considered the information Ms B provided and the Ombudsman’s role and powers. I sent a draft decision to Ms B and invited comments before I made my final decision.

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What I found

5. Under Section 41 of the Highways Act 1980, the Council has a duty to maintain highways maintainable at the public expense. The definition of a highway includes the pavement running alongside a road and any footpaths for which the Council is responsible.
6. While Ms B is unhappy with the road surface where she lives, the Ombudsman will not investigate this complaint. Whether the Council has met its duty under Section 41 of the Highways Act 1980 requires interpretations of the law. This is not a matter for the Ombudsman.
7. If Ms B believes the Council has failed in its duty to maintain the Highway, she may serve notice on the Council to carry out repairs. Should it fail to do so, Ms B may then apply to the magistrates’ court for an order under section 56 of the Highways Act 1980 requiring it to take action. The Council would be bound by any order made by the magistrates’ court and it is therefore reasonable to expect Ms B to use the alternative remedy available to her.

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Final decision

8. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Ms B to use her right of remedy in the courts if she believes the Council has failed to meet its duty to maintain the highway.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman