Summary: The Ombudsman will not investigate this complaint about the Council not maintaining the highway near the complainant’s home. He is unlikely to find fault in how the Council has decided what work to carry out. The complainant could also seek a remedy in court. A complaint about providing information to the complainant should be made to the Information Commissioner.

The complaint

1. The complainant, who I refer to here as Mrs B, has complained the Council has not properly maintained the highway where she lives for many years. She says the roads and pavements are now in a dangerous condition.
2. Mrs B also says the Council has not answered questions she has asked about repairing the highway.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. The law also says we cannot normally investigate a complaint when someone can appeal to a tribunal. Again, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So we normally consider it reasonable to expect someone to refer such a complaint to the Information Commissioner.

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How I considered this complaint

10. I have considered what Mrs B said in her complaint and background information provided by the Council.

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What I found

Highway repairs

11. It is for the Council to decide how to allocate the funds it has for highway repairs. It does this by assessing the condition of the highway against criteria such as the condition of the road and traffic volumes. This is supported by a programme of regular inspections.
12. The Council has recently carried out repairs to the road surface in Mrs B’s road. However it does not consider the condition of pavement justifies repairs at present.
13. I consider we are unlikely to find fault in how the Council has decided what repairs to carry out and so we should not investigate this part of Mrs B’s complaint.
14. Further, Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
15. If Mrs B considers the Council is not keeping the road in repair, she has the right to take her complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
16. I consider it would be reasonable for Mrs B to serve a notice on the Council and take her complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Answering her questions

17. Mrs B can request the information she requires under the Freedom of Information Act 2000. If the Council does not provide the information, she can take the matter to the Information Commissioner. I do not consider this is something we should investigate.

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Final decision

18. I have decided we will not investigate this complaint for the reasons given in paragraphs 13, 16 and 17.

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Investigator's decision on behalf of the Ombudsman