City of York Council (22 000 785)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 25 Apr 2022
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council’s failure to repair potholes. This is because it is reasonable for Mr C to apply for an order from the court.
The complaint
- The complainant, who I will refer to as Mr C, complains that the Council has ignored his requests for potholes to be repaired on numerous roads in the Council’s area.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The Act 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)
How I considered this complaint
- I considered information provided by Mr C.
- I considered the Ombudsman’s Assessment Code.
My assessment
- The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of the highway and carry out repairs where necessary. But, the level of maintenance, frequency of inspections, and threshold for repairs is not set out in law and is open to interpretation.
- If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
- If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
- Mr C and other affected residents may use this process to try to get the Council to repair the defects complained about. I find it is reasonable for Mr C to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
Final decision
- We will not investigate Mr C’s complaint because it is reasonable for him to apply for a court order.
Investigator's decision on behalf of the Ombudsman