Summary: We will not investigate this complaint about highway repairs. This is because it is unlikely we would find the Council at fault and it is reasonable to expect Mr Y to take his complaint to the courts, who are better placed to consider this complaint.

The complaint

1. Mr Y complains about the Council’s failure to make proper repairs to the road alongside his home. He also says the Council failed to fully consider his complaint.
2. Mr Y says the poor repair work the Council has done to the road means his property vibrates when large or heavy vehicles use the road, causing disruption to his daily life.

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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. 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)
5. 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
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A(6), as amended)

6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I considered the information Mr Y provided and spoke to Mr Y. Mr Y had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr Y made several reports to the Council about disrepair to a road going past his home between 2017 and June 2020. Mr Y then raised a complaint with the Council about the standard of the repairs carried out on the highway in 2018 and beyond. The Council gave its final response to the complaint in October 2020. It said the road Mr Y complained about was due to be inspected, to see if any repairs were needed, the following month as part of a rolling programme of inspections of the highways to ensure it was kept in a suitable condition. It said at that point the Council as the highway authority did not consider the road was in need of repair at that time but would continue to review it every six months. Mr Y then contacted us in October 2020.

Analysis

9. As the Council has considered Mr Y’s complaint, inspected the road and found, in its professional opinion as the highway authority, that no further repairs are needed, it is unlikely we would find the Council at fault in this complaint. We will therefore not investigate this complaint.
10. Under the Highways Act 1980 s41 the highway authority has a duty to maintain all its highways that are maintainable at public expense including a duty to repair the highway when necessary. Under s56 of the same Act Mr Y has the right to serve notice requiring the Council to repair the highway. The Council must reply, confirming if it is the authority responsible for the highway. If it is, Mr Y then has six months to apply to the magistrates’ court asking them to order the authority to carry out the work.
11. From the documents provided, there is no reason why Mr Y should not take his complaint to the magistrates’ court and the court would be better placed to deal with the issues raised than us as it has the power to order the authority to carry out the work if necessary, which we cannot.
12. As we are unable to deal with the substantive issue, about the repairs to the highway, we will not investigate Mr Y’s complaint about how the Council dealt with his complaint as this is not a good use of public resources.

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Final decision

13. We will not investigate this complaint. This is because it is unlikely we would find the Council at fault and it is reasonable to expect Mr Y to take his complaint to the courts.

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Investigator's decision on behalf of the Ombudsman