Summary: The Ombudsman will not investigate this complaint that the Council is not properly maintaining the highway. It is unlikely he would find fault by the Council and the complainant can seek a remedy in court.

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. It 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
4. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained; or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I have considered what Mr C said in his complaint. Mr C commented on a draft before I made this decision.

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What I found

7. Mr C has reported several highway defects to the Council but says it has not carried out repairs.
8. The Council has a duty under section 41 of the Highways Act 1980 to maintain the highway. There is no expectation the Council should always keep the highway in perfect condition.
9. The Council has limited resources and it must allocate these dependent on its assessment of factors such as potential safety issues and if it has already planned work in the area. These are decisions for the Council to make.
10. The Council has not ignored Mr C’s concerns but has been unable to carry out all the repairs he thinks it should.
11. I have decided we will not investigate this complaint because we are unlikely to find evidence of fault by the Council.
12. Moreover, section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
13. If Mr C considers the Council is not keeping the road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
14. I consider it would be reasonable for Mr C to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

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Final decision

15. I have decided we will not investigate this complaint for the reasons set out in paragraphs 11 and 14.

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Investigator's decision on behalf of the Ombudsman