Summary: We will not investigate this complaint that the Council has failed to properly maintain the road surface outside the complainant’s home. Further consideration is unlikely to find fault by the Council and it is reasonable for the complainant to use the legal remedies available to him.

The complaint

1. The complainant, who I refer to here as Mr B, has complained a speed hump in the road outside his home is in poor condition. He says this causes vibration and disturbance. Mr B says the problem has worsened with increased traffic and because buses now use the roads. He wants the Council to witness the problem from within his home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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; or
• it is unlikely we could add to any previous investigation by the Council. (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)

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How I considered this complaint

7. I have considered what Mr B said in his complaint which included the Council’s response to his concerns.

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What I found

8. Mr B says a speed hump in the road outside his home surface is in poor condition and causes vibration leading to disturbance and cracks within his home. He says the Council has not visited to witness this.
9. I consider the Council has provided a full response to Mr B’s concerns. An investigation by us is unlikely to add anything significant to what we know.
10. In response to Mr B’s complaints, the Council has explained it has inspected the road when it has received reports about its condition. The Council says it will carry repairs when it considers these are necessary but this is not currently the case. It says it may carry out repairs in the next financial year but cannot promise it will be able to give this priority.
11. While Mr B disagrees with the Council’s decision, we can only criticise the Council if its decision was made with fault. Further consideration of the complaint is unlikely to find fault because officers have considered the reports they have received, inspected the road surface and decided it does not require intervention.
12. The Council also explained why it considers vibration from passing traffic is unlikely to cause damage to Mr B’s property. It said it would consider any supporting evidence Mr B can provide, such as a structural report from a suitably qualified engineer.
13. We would not investigate a complaint about damage to property caused by vibration on the highway. Such a complaint would be in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
14. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.
15. Further, Section 56 of the Highways Act 1980 allows Mr B to serve a notice on the Council that the road is not in proper repair. If the Council disputes this or does not respond within one month, Mr B may apply to a magistrates’ court. The court can, if it sees fit, order the Council to put the road in proper repair within a reasonable period.
16. I consider it would be reasonable for Mr B to serve a notice on the Council and take his 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.

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Final decision

17. I have decided we will not investigate this complaint. This is because we are unlikely to find fault by the Council and Mr B can seek other remedies through the courts.

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Investigator's decision on behalf of the Ombudsman