Summary: We will not investigate Mr X’s complaint about a defect in the road outside his property. This is because there is no evidence of fault in the Council’s decision not to take immediate action. If Mr X disagrees with the Council’s decision it would be reasonable for him to go to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to carry out repairs to the public highway outside his home. He says a small patch of road has sunk and this causes vibrations to his property when buses and heavy goods vehicles pass over it.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. 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. (Local Government Act 1974, section 34(3), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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 information provided by Mr X’s MP and the Ombudsman’s Assessment Code.

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My assessment

6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
7. The Council has investigated the defect Mr X complains about but decided it does not meet the threshold for intervention. In reaching this view it has taken account not only of the visible state of the road but also Mr X’s comments about the vibrations to his property. I therefore see no basis for us to criticise its decision.
8. If Mr X believes the road is out of repair and the Council has a duty to repair it, it would be reasonable for him to use the process set out at Section 56 of the Highways Act 1980. This allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. This would also allow Mr X to claim costs for any damage resulting from the issue.

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Final decision

9. We will not investigate this complaint. This is because there is no evidence of fault by the Council and if Mr X disagrees with its decision it would be reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman