Summary: We will not investigate Mrs B’s complaint that the Council has failed to maintain the road outside her home. This is because it is reasonable for Mrs B to apply for a court order which requires the Council to repair the road.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council is failing to maintain the road outside her home. Mrs B says the road is in a dangerous condition. Mrs B says part of her boundary hedge has died because of salt water spray from a large pothole. Mrs B also says because of the poor condition of the road she fell off her motorcycle and damaged her motorcycle and helmet. Mrs B would like the Council to: resurface this section of the road; replace her damaged hedge; and, contribute to her costs for a replacement motorcycle helmet.

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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.
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)

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How I considered this complaint

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

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My assessment

6. 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 highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. 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.
8. 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.
9. Mrs B may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs 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.
10. Mrs B also complains about damage to her property as a result of the poor condition of the road. In effect, this is a complaint that the Council has been negligent.
11. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
12. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Mrs B cannot do this. So, we will not investigate this part of Mrs B’s complaint.

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Final decision

13. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman