Summary: We will not investigate this complaint about highway repair. This is because it is unlikely we would find the Council at fault and it is reasonable to expect Mr Y to use his right to take the matter to court.

The complaint

1. Mr Y complains about the Council’s decision not to make repairs to the highway outside his home.
2. Mr Y says his house vibrates and shudders loudly whenever a large vehicle or bus drives past his home, causing him distress and inconvenience.

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The Ombudsman’s role and powers

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 it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

5. I considered the information provided by Mr Y about the complaint. 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

6. Mr Y told the Council about the noise of large vehicles going along the road outside his property. The Council inspected the road in February 2020 but found no repair was needed. As Mr Y disagreed with the outcome of the inspection, he complained to the Council in March. The Council’s first response denied any fault and said the road was in a suitable condition. Mr Y then asked it to reconsider its response in July. The Council responded again in August 2020 and did not uphold Mr Y’s complaint. Mr Y then approached us in October.

Analysis

7. Mr Y’s profession means he also has a professional opinion about the cause of the vibrations in his home and does not consider the inspection of the road surface as a sufficient investigation into the problem. He disagrees with the Council’s professional opinion as the highway authority that no repairs are needed.
8. We cannot choose between two opposing professional opinions, including on the level of inspection required, although a court can do this. We can only consider whether there was fault in the way the decision as reached. As the Council has considered Mr Y’s complaint, used its professional expertise to inspect the road and decide, as the highway authority, that no repairs are needed, it is unlikely we would find the Council at fault in this complaint.
9. 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.
10. 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 the Ombudsman as it has the power to order the authority to carry out the work if necessary, which we cannot. Consequently, we will not investigate this complaint.

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Final decision

11. We will not investigate this complaint. This is because it is unlikely we would find the Council at fault and it is reasonable for Mr Y to take the matter to the magistrates court.

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Investigator's decision on behalf of the Ombudsman