Summary: We will not investigate this complaint about the Council’s response to the complainant’s reports of defects in the surface of his road. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is insufficient evidence of fault in the Council’s response to the concerns raised about the road, and it is reasonable to expect the complainant to pursue a court remedy if he thinks the Council is responsible for damage to his vehicle or should conduct further repairs.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council denied repairs to his road were necessary, yet carried out £119,000 of works shortly after closing his complaint. Mr X says he had worried his elderly father might trip and injure himself when crossing the road, and his father stopped using his bike as he feared the potholes might cause him to fall off. Mr X also says their cars were damaged by the condition of the road.

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The Ombudsman’s role and powers

2. The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

3. 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)
4. We consider whether there was procedural fault in the way an organisation made its decision. If there was no fault in the decision-making process, we cannot question the outcome, even if the complainant disagrees with the organisation’s decision. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information provided by Mr X and the Council, which included their complaint correspondence and an explanation of why the works were undertaken.
6. I also considered our Assessment Code.

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My assessment

7. Mr X complained to the Council about the condition of his road. It responded at Stages 1 and 2 of its complaint process in May 2022. The Council said the road had been inspected on more than one occasion, but its condition was not considered to represent a safety hazard and so did not require urgent intervention. It said the road would be added to the list for consideration for future resurfacing.
8. Mr X then saw a newspaper article in late-May 2022, which said the Council had allocated £119,000 in its recently published ‘Annual Maintenance Report’ (AMR) to carry out repairs to his road. These works were carried out in late‑May/early-June 2022.
9. The Council has explained to me that whilst no urgent ‘reactive’ works were deemed to be necessary in response to Mr X’s concerns, its ‘proactive’ annual programme had recognised the life of this highway asset could be extended by carrying out repairs. The Council also confirmed that, following investigation, further repairs to a final section of Mr X’s road are not considered necessary at this time, but it will continue to be monitored in accordance with Council policy.
10. I can understand why Mr X might have been confused when repairs were carried out to his road despite the earlier complaint responses saying none were necessary. But, having inspected the road, the Council was entitled to reach separate professional judgements on the need for urgent works in the short-term, and the need for planned works to maintain the highway for the future. The Council explained to Mr X why it felt immediate repairs were unnecessary, but said the road would be considered for future, planned maintenance. Overall, I find there is not enough evidence of fault in the way the Council reached its judgements and responded to Mr X’s enquiries to warrant the Ombudsman pursuing this part of the complaint further.
11. And if Mr X believes the Council should carry out further works to a final section of his road, he 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. 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. I consider it reasonable for Mr X to use this court remedy, as 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.
12. Similarly, if Mr X thinks the condition of the road caused damage to his vehicle, then it would be open to him to make an insurance claim. If the claim is unsuccessful, then he could pursue the matter further through the courts. Only a court can decide if the Council has been negligent and is liable for any damage. Also, unlike the Ombudsman, the court can order a party to pay damages. So, the Ombudsman would usually expect someone to seek a court remedy, either directly or through insurers, if they think the Council is responsible for damage to property.
13. And whilst I acknowledge Mr X and his father were worried that the road might have caused an accident, we cannot investigate possible, future injustice, because the law does not allow us to investigate something that has not yet happened

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Final decision

14. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way it responded to his concerns about the road, and it is reasonable to expect him to use the alternative court remedies available to him if he thinks the Council is responsible for damage to his car or should conduct further repairs.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman