Summary: We will not investigate Mr B’s complaint that the Council has failed to repair a defective section of road outside his home. This is because it is reasonable for Mr B to use the remedies available to him at court.

The complaint

1. The complainant, who I will refer to as Mr B, complains that the Council has failed to repair a defective section of road outside his home. Mr B says this results in his house shaking every time heavy goods vehicles drive past and this has caused cracks in the walls. Mr B would like the Council to repair the road to prevent further damage to his home.

Back to top

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.
3. 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)

Back to top

How I considered this complaint

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The Council says a repair to this section of road is not needed. The Council also says even if it did this repair, it may not resolve Mr B’s concerns about his house shaking when lorries drive past.
7. 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.
8. 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. The order requires the highways authority to carry out the work needed to the highway.
9. 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.
10. Mr B may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B 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.
11. In addition, if Mr B considers his property has been damaged because of the Council’s failure to repair the road, he may put in a compensation claim to the Council. If needed, Mr B may pursue his claim at court. Only a court can decide if an organisation has been negligent. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his building insurer.

Back to top

Final decision

12. We will not investigate Mr B’s complaint because it is reasonable for him to pursue this issue at court.

Back to top

Investigator's decision on behalf of the Ombudsman