Summary: Mr X complained the Council had failed to maintain the road outside his property and this meant he could not leave his property unaccompanied. Mr X also complained about the way the council handled his complaint. Mr X wanted the Council to fix the potholes. We will not exercise discretion to investigate this complaint as Mr X could go to court and it would be reasonable for him to do that.

The complaint

1. Mr X complained the Council consistently failed to maintain the highway outside his property in a good state of repair. Mr X stated he had broken two white canes in potholes and he could not leave his home alone as he was likely to trip. Mr X also complained about the way the Council handled his complaint. Mr X wanted the Council to fix the potholes on his road.

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The Ombudsman’s role and powers

2. 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)
3. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information provided by Mr X and discussed the complaint with him. I have reviewed the document provided by the Council. Mr X had an opportunity to comment on my draft decision.

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What I found

5. Mr X is partially sighted and walks with a white cane. Mr X stated that in the summer of 2020 he broke two white canes by snapping them in dangerous potholes on the road outside his property. Mr X stated he could not leave his house alone as he was likely to trip and fall on the potholes.
6. Mr X contacted the Council in August 2020 to complain about the potholes on the road. Mr X says the Council offered to fix the problem before he made a complaint. Mr X contacted the Council again in September and October 2020 when the Council had not fixed the potholes.
7. The Council said that it made repairs in August 2020 following an annual inspection of the road. Additionally it said that it made more in November 2020 after Mr X’s complaint. The Council said it completed the repairs with materials and methods above those for that category of road dictated in the policy.
8. The Council provided a final response in November 2020 outlining the work completed and stating that although it did not recognise the first calls as complaints it had completed Mr X’s requests. The Council apologised for the inconvenience caused to Mr X by the misunderstanding.
9. Mr X has previously complained to us in 2014 after he tripped on a pothole and broke his ribs and arm. We advised Mr X then that he could seek a remedy through the courts.
10. The Highways Act 1980 sets out the Council’s duty to maintain all its highways that are maintainable at public expense. The act also provides Mr X the right to apply to the Magistrates’ court if he believes the road is ‘out of repair’. It may issue an order requiring the Council to bring the highway up to standard. If he suffers any loss or personal injury then he could claim against the Council’s insurance, and to the small claims court if liability is not accepted.
11. The restriction outlined in paragraph 2 applies because Mr X is able to take the matter to court. We have discretion to disapply this rule where we decide there are good reasons. In this case I have decided not to exercise discretion because Mr X has not provided a good reason why he is not able to apply to the court.
12. The restriction outlined in paragraph 3 applies because we are not able to compel the Council to repair the road outside their policy. We would not be able to achieve the outcome Mr X is seeking but the Magistrates’ court could.
13. Mr X also complained about the way the Council accepted and handled his complaint. If we are not investigating the substantive issue we cannot investigate the way the Council handled the complaint.

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Final decision

14. We will not exercise discretion to investigate this complaint. This is because Mr X could go to court and it is reasonable that he should do that. We cannot achieve the outcome Mr X is seeking.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman