Summary: The complaint is about a road’s state of repair. The Ombudsman will not pursue this complaint because Mrs B has the right to take court action.

The complaint

1. Mrs B complains the Council has not dealt properly with some potholes. She says this means the road in question is not safe for vehicles or pedestrians.

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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 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 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)

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How I considered this complaint

5. I considered the information Mrs B provided. I also considered the relevant law. I gave Mrs B the opportunity to comment on this draft decision.

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What I found

6. Mrs B told the Council about some potholes on a road she regularly uses. She reports the potholes affect the road and a pedestrian crossing. The Council did not act on this in its usual timescale, it states because of the volume of demand. Mrs B states the Council has now patched two of the potholes but she believes the work is of a poor standard. Mrs B says the Council has not done anything about the third pothole she reported.
7. The law gives people the right to apply to the crown court or magistrates’ court (depending on the circumstances) for an order to repair a Council-maintained highway. The procedure is at section 56 of the Highways Act 1980. The court will then hear any evidence either party submits and decide if the road is out of repair. If the court decides the road is out of repair, it can order the Council to do repairs.
8. This means the restriction in paragraph 3 applies to this complaint. Mrs B could ask the court to consider both whether the works the Council has done are adequate and whether the remaining hole needs repair.
9. The law specifically provides this route for dealing with disputes about whether a road needs repairs. Mrs B was able to pursue the matter with the Council and come to the Ombudsman so I see no reason to consider it unreasonable to expect Mrs B to go to court.
10. Moreover, the court can order the Council to do repairs if it considers that necessary. The Ombudsman cannot do that. If an investigation by the Ombudsman were to find fault in how the Council reached any decision about these potholes (and I do not know what such an investigation might find in this case), the Ombudsman might recommend the Council make the decision again. However, the Ombudsman would be unlikely to say what the Council’s new decision should be.
11. Also, as paragraph 4 explained, we will only investigate a complaint if the Council’s alleged fault might have caused the complainant a significant enough injustice to warrant that. I appreciate the potholes will have caused Mrs B some inconvenience in having to travel more carefully in that area to reduce any potential danger. Mrs B has also spent time pursuing the matter. While I acknowledge those points, I do not consider they amount to a significant enough injustice to warrant the Ombudsman devoting time and public money to investigating.
12. For these reasons, it is reasonable to expect Mrs B to use the right the law gives her to go to court so I shall not investigate the complaint.

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Final decision

13. The Ombudsman cannot investigate this complaint. This is because Mrs B could take court action.

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Investigator's decision on behalf of the Ombudsman