Summary: The Ombudsman will not investigate this complaint about highway repairs and damage to the complainant’s car. The complainant can seek a remedy in court and we are unlikely to find fault in how the Council has decided no further repairs to the highway are necessary.

The complaint

1. The complainant, who I refer to here as Mr B, has complained about the condition of speed humps on a road near his home. He says the Council has refused to pay for the cost of repairing damage to his car and has not carried out necessary repairs.

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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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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.

(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 B said in his complaint and background information provided by the Council.

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What I found

Damage to Mr B’s car

7. Mr B believes the Council is responsible for damage to his car. He sent an insurance claim but the Council has denied liability.
8. Mr B’s complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
9. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.
10. There is no exceptional reason Mr B cannot seek a remedy in court and so we will not investigate this part of his complaint.

Repairs to the highway

11. Mr B has also complained to the highway about the condition of a road near his home, particularly in relation to speed humps. The Council inspected the road and carried out some minor repairs. It does not consider any further work is necessary.
12. It is for the Council to decide what work may be necessary and to give priority to any repairs. While I recognise Mr B disagrees with it, we are unlikely to find evidence of fault by the Council.
13. Further, 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, as appears to be the case here, the person can apply to a magistrates’ court.
14. If Mr B 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.
15. It would be reasonable for Mr B 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

16. I have decided we will not investigate this complaint for the reasons set out in paragraphs 10, 12 and 15 above.

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Investigator's decision on behalf of the Ombudsman