Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s failure to repair a defect in the road outside his house. 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 not taken action to repair a defect in the road outside his house. He says vehicles using the road are causing his property to vibrate which in turn is causing damage.

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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 and the Council’s response.

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What I found

5. Mr X reported a pothole in the road outside his house in mid-2019 but he is not happy with the way the Council has dealt with the issue. He says the temporary repair has not lasted and he wants the Council to fix the defect properly. He is concerned vibrations resulting from vehicles hitting the pothole are damaging his property.
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. 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.
7. 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. The courts can also consider whether the Council is liable for any damage to Mr X’s property, which is not an outcome we can achieve.

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Final decision

8. 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