Summary: The Ombudsman will not investigate Mr X’s complaint about the state of the road outside his property. 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 failed to take action to deal with defects in the road outside his property and to keep him updated about the matter.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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, shared my draft decision with him and considered his comments.

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What I found

5. Mr X has reported concerns about potholes and the general state of the roads outside his property since 2018. He says the Council failed to carry out repairs and has not kept him updated as it should have done. He complained to the Council in 2019 and the Council upheld his complaint. It does not consider the road a priority for repairs but accepts it did not update Mr X as its policy requires. The Council’s final response included recommendations to deal with the issues identified but Mr X says it has not complied with these.
6. The Ombudsman will not investigate this complaint. The substantive issue in this case concerns a matter of highway disrepair and the Council’s duty on this point is set out at Section 41 of the Highways Act 1980. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
7. If Mr X believes the Council has failed to comply with its duty to maintain the public highway it would be reasonable for him to take the matter to court. Section 56 of the Highways Act 1980 allows Mr X to 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.
8. While Mr X is unhappy the Council has not kept him updated about its actions this issue does not cause him significant injustice and we will not investigate it separately.

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Final decision

9. 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