Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s failure to repair a section of road. The Council denies responsibility for the road and if Mr X wishes to challenge its position it would be reasonable for him to serve notice on the Council and take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has denied responsibility for carrying out repairs to a road near his house. He says the Council has maintained the road for several years but now major works are needed it refuses to take action.

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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. I shared my draft decision with Mr X and invited his comments.

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What I found

5. Mr X owns a property which is accessed via a private lane. The Council has previously maintained the road up to a certain point but it now says this was a mistake. It accepts responsibility for maintenance up to approximately five metres before the point but says the remaining five metres are not adopted highway and it is not responsible for maintaining it.
6. Mr X disputes the Council’s response and believes it is liable for maintaining the section of road. He suggests the Council is only now refusing the maintain the road as it needs significant repairs.
7. The Ombudsman will not investigate this complaint. It is not for the Ombudsman to decide if the Council is responsible for maintaining the road; the courts are better placed to deal with this issue.
8. Section 41 of the Highways Act 1980 requires highways authorities to maintain public highways and under Section 56 of the Act Mr X may serve notice on the Council to comply with this duty. If, as the Council’s responses to date suggest, it disputes liability and refuses to carry out repairs Mr X may apply to the Crown Court for an order requiring action. This is the appropriate mechanism for challenging the Council’s position and the Council must comply with its decision. It would therefore be reasonable for Mr X to use the alternative remedy available to him.
9. Mr X is also unhappy with the way the Council has dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman