Summary: The Ombudsman will not investigate Mr B’s complaint about highway defects. This is because, if the issue remains unresolved, it is not unreasonable to expect Mr B to go to court, seeking assistance if he feels this is necessary.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council failed to ensure maintenance work to put right highway defects was completed within a reasonable time period. Mr B told us these defects are opposite his home. He says when heavy vehicles drive over them it causes significant noise and vibration. Mr B says he has suffered unnecessary stress and anxiety and the noise affects his sleep at a time when he is undergoing medical treatment.

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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 have considered the information Mr B provided and given him an opportunity to comment on my draft decision.

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What I found

5. Mr B says he first complained about the highway defects in September 2019. He told us the Council says it will repair such defects in in 28 days but there has been no change to the situation for almost six months.
6. To put things right, Mr B wants the Council to carry out repairs as a matter of urgency.
7. Section 41 of the Highways Act 1980 places 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 Ombudsman cannot interpret the law to say the Council has failed to fulfil its duties under the relevant legislation. He has no powers to order the Council to carry out maintenance work Mr B believes is necessary. Section 56 of the Highways Act 1980 provides an alternative remedy for people who wish to take action about this issue. If the issue Mr B has reported remains unresolved, he may serve notice on the Council and, if it does not act, he may, seeing assistance if he feels this is necessary, apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so, if Mr B wishes to pursue this matter, it would be reasonable for him to follow the process set out above. Also, section 58 of the Highways Act 1980, gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove the right of the Council to use that defence by investigating Mr X’s complaint.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because, if the issue remains unresolved, it is not unreasonable to expect Mr B to go to court, seeking assistance if he feels this is necessary.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman