Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has failed to put right highway defects within a reasonable time period. This is because it is not unreasonable to expect Mr B to seek a remedy by going to court.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council has failed to put right highway defects within a reasonable time period. He told us the defective dropped kerb has caused minor damage to his household vehicles, fine hairline cracks in the front facing walls of his home may be caused by the number of heavy vehicles driving over the broken surface and he has been approached by people seeking to make claims against his household insurance for personal injury.

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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 Mr B provided, including his photographs. I have given Mr B an opportunity to comment on my draft decision.

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What I found

5. People must bring their complaints to us within 12 months of becoming aware of the matter they are complaining about. But we have discretion to consider complaints made outside this timescale if there are good reasons to do so such as the complainant suffering ongoing harm. Mr B has told us he has suffered ongoing harm. Also, he says the dropped kerb and the road surface has deteriorated within in last 12 months.
6. When it responded to Mr B’s complaint the Council explained it classifies his road as a local road. It inspects local roads annually. The Council said its most recent inspection of Mr B’s road was in March 2019 when the highways inspector did not identify any new carriageway defects. So the Council told Mr B it currently has no plans to undertake resurfacing works. But it did say it would repair the defective dropped kerb although it could not tell him a firm date. The Council said the work needed to the pavement further along the road would be completed shortly.
7. Section 56 of the Highways Act 1980 gives people the right to serve notice on councils and then apply to the Magistrates’ Court for an order requiring them to carry out repairs. I have considered whether to it would be unreasonable to expect Mr B to go to court. In this case it would not be unreasonable to expect him to use the legal process available. This is because

• this is the specific remedy the law provides,
• a court of law is the appropriate body to rule on whether a council has complied with its duty under section 41 of the Highways Act 1980 to maintain highways maintainable at the public expense,
• the process is not complicated,
• there is no charge for the initial step of serving notice on a council, and
• the court has powers we do not have to order a council to do the work.

8. Mr B has told us his household vehicles, and possibly his home, have been damaged because of the Council’s delay in repairing the dropped kerb. Mr B can make a claim if he believes he has suffered damage as a result of negligence by the Council. If his claim is not resolved to his satisfaction, it is not unreasonable to expect him to seek a remedy by going to court. That is because negligence is a legal matter and it is for the courts to rule on whether the Council is liable for the damage Mr B has described.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because it is not unreasonable to expect Mr B to seek a remedy by going to court.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman