Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s delay in carrying out repairs to a road. Part of the complaint is late and the courts were better placed to decide if the Council had complied with its duty to maintain the road. The Council has now repaired the road and it is unlikely we could achieve anything more for Mr X.

The complaint

1. The complainant, Mr X, complains the Council delayed in dealing with his concerns about highway disrepair from May 2016 until late 2019. He says the dangerous condition of the road increased his risk of serious injury and damage to his bicycle.

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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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I reviewed the information provided by Mr X including the details of his complaint and the Council’s responses. I shared my draft decision with Mr X and considered his comments.

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What I found

6. 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.
7. Mr X reported concerns about the state of the public highway to the Council in May 2016. He says the Council failed to deal with the issue so he contacted it again in January 2018 and then in November 2019. The Council says it inspects roads once a year and since 2016 it has received reports of 25 defects of which 15 met the threshold for temporary repairs. It has since decided to resurface the road including the footway but Mr X remains unhappy that it did not deal with the matter sooner.
8. The Ombudsman will not investigate this complaint. Mr X brought his complaint to the Ombudsman in September 2020 so any complaint about the Council’s claimed inaction between May 2016 and September 2019 is late.
9. While the Ombudsman has discretion to investigate late complaints the Council has explained how it met its duty under Section 41 of the Highways Act 1980 and it is not for us to say its actions were insufficient. If Mr X felt the Council had not done enough it would have been reasonable for him to serve notice on the Council under Section 56 of the Act and, if he was not satisfied with its response, refer the matter to the magistrates’ court.
10. The Council has now repaired the road and it is unlikely we could achieve anything more for Mr X.
11. Mr X is also unhappy with the way the Council has dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because part of the complaint is late and the courts were better placed to deal with the substantive issue, which has now been resolved.

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Investigator's decision on behalf of the Ombudsman