Summary: Mr X complained about the Council’s failure to properly repair the public highway near his home. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Mr X, complained about potholes in the surface of the road near his home. He says that the disrepair is a hazard to cyclists and that cars take avoiding action which creates more danger. Some holes have been repaired but he says he wants the Council to have a length of 200 metres resurfaced.

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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
• 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.

(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 have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has commented on a copy of my draft decision.

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What I found

5. Mr X complained to the Council about the condition of a road near his home. He said that the numerous potholes had been marked for repair but over a period of months only a few were filled. He says the entire stretch of highway is in poor repair and should be resurfaced rather than patched.
6. The Council’s highways contractor uses a repairs matrix based on the depth of potholes and the use of the highway as the basis for repairs priority. It says some of the repairs had qualified for repairs, but others did not meet the criteria. Following Mr X’s complaint, the Council inspected the road and told him that it would place it on the list for repairs within the next 3-6 months. It would monitor the road in the meantime in case any defects fell within the repairs criteria.
7. Councils as highway authorities have a duty to maintain the public highway. They do this by annual inspections and by having a list of priority for repairs. This involves considering the depth of surface damage and the traffic use of the road. They may carry out urgent repairs to qualifying potholes, but re-surfacing is carried out under planned maintenance schedules.
8. A member of the public may serve a notice on the authority under s.56 of the Highways Act 1980 where they consider a highway to be out of repair. If the Council fails to act they may seek an order from the Magistrates Court. If Mr X remains dissatisfied and the road deteriorates further, it would be reasonable for him to consider this remedy.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman