Summary: The Ombudsman has discontinued his investigation into Mr X’s complaint about how the Council dealt with reports of a damaged manhole cover. There is a legal remedy available to Mr X if he considers the Council is not properly maintaining the road surface near his home.

The complaint

1. The complainant, whom I refer to as Mr X, complains about the Council’s decision not to repair a damaged manhole cover on the road outside of his property.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered the complaint made and the response from the Council. I considered the Highways Act 1980. I sent a draft of this decision to Mr X and the Council for comments.

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What I found

6. Mr X complained a manhole cover outside his property was damaged. He said it made a clunking noise when vehicles drove over it and was dangerous.
7. Sections 36 and 41 of the Highways Act 1980 place a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
8. The Council confirmed it inspected the area but decided the issue was not serious enough to warrant repairs. The Council said the area in question is inspected on a quarterly basis but at present priority for repairs are given to areas in the worst condition.
9. There is a legal remedy available to Mr X if he considers the Council is not properly maintaining the road near his home. Section 56 of the Highway Act 1980 allows people to apply to the Magistrates’ Court for an order to force a highways authority to put a road into proper repair within a specified time. I consider it reasonable for Mr X to use this remedy. This is because a court has powers to instruct the Council to carry out any necessary work and set a timescale for completing it. The Ombudsman has no such powers.

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Final decision

10. I have discontinued my investigation as Mr X has a legal remedy available to him which it is reasonable to expect him to use.

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Investigator's decision on behalf of the Ombudsman