Summary: We will not investigate Mr X’s complaint about the surface of the road outside his property. This is because it would be reasonable for him to serve notice on the Council and take the matter to court.

The complaint

1. The complainant, Mr X, complains about resurfacing works carried out in 2019. He says the surface has never properly set and this has resulted in damage to the road and to personal belongings.

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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. 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

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. 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.
6. The substantive issue in this case is whether the surface of the road is suitable or whether, due to the defects Mr X refers to, it could be seen as out of repair. This is a highly technical point and one it is unlikely we could resolve or achieve any meaningful outcome for Mr X by investigating.
7. The Council remains of the view that the materials used to resurface the road were fit for purpose and the law does not allow us to question whether a decision is right or wrong unless there is evidence of fault in the way it was reached.
8. We cannot interpret the law to say the Council has failed to fulfil its duty but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may 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. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above. He may also ask the court to consider any claim for damage to his property resulting from issues with the road surface.

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Final decision

9. We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman