Summary: Mr X complains the Council has failed to repair the road where he lives. The Ombudsman does not intend to investigate this complaint because Mr X has the right to take court action.

The complaint

1. The complainant who I shall call Mr X, complains the Council has failed to repair sections of damaged road surface where he lives. He says this has damaged his property.
2. He wants the Council to repair the road and pay for repairs to his property.

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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)

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How I considered this complaint

5. I considered the information provided by Mr X and the Council.

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What I found

6. The law gives people the right to apply to the crown court or magistrates’ court (depending on the circumstances) for an order to repair a Council-maintained highway. The procedure is at section 56 of the Highways Act 1980. The court will then hear any evidence either party submits and decide if the road is out of repair. If the court decides the road is out of repair, it can order the Council to repair it.
7. This means the restriction in paragraph 4 applies to this complaint. Mr X could ask the court to consider whether the road surface need repairing.
8. The law specifically provides this route for dealing with disputes about whether a road needs repairing. Mr X pursued the matter with the Council and the Ombudsman, so I see no reason to consider it unreasonable to expect him to go to court.
9. Also, the court can order the Council to do repairs if it considers that necessary. The Ombudsman does not have this power.
10. Turning to Mr X’s claim that the vibration from the road surface has damaged his property. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
11. If the Council’s insurers reject a formal claim from Mr X, it is open to him to make a claim in court. I consider it would be reasonable for him to do so. This is because only the Court can decide if the Council has been negligent and whether it should pay for repairs.

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Final decision

I will not investigate this complaint. This is because Mr X can ask the court to establish whether the road is out of repair. If the court decides it is, it can order the Council to repair it. And, if Mr X believes the Council’s negligence has damaged his property, he can make a claim on the Council’s insurers. If this is refused, he can ask the court to decide whether the Council is liable for the damage and compensate him as appropriate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman