Summary: We will not investigate this complaint about highway maintenance. This is because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to use his right to approach the court about the matter.

The complaint

1. Mr Y complained the Council has failed to properly maintain an adopted highway in his area and failed to deal with his complaint in a timely manner.
2. Mr Y is concerned about the safety of other local users of the road and the potential damage to vehicles.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
4. 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)
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y approached the Council in March 2022 about the condition of the road outside his home. The Council said the road was inspected annually with the next inspection being due in October, but agreed to monitor the site and take action where it felt necessary. Mr Y then emailed further complaining about the lack of action in April. The Council then responded in September, apologising for the delay in responding, which it said had been caused by human error and referred Mr Y to us if he remained unhappy. Mr Y approached us shortly afterwards.

Analysis

8. 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, depending on their classification 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.
9. 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. It can also consider whether the Council has classified the road correctly where this is disputed.
10. 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.
11. Mr Y may use this process to try to get the Council to repair the road. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use this right to go to court about this matter.
12. Further, 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, so it is better placed than us to consider the complaint. We will therefore not investigate.
13. As we are unable to investigate the substantive issue, it would not be a good use of public resources to investigate how the Council considered Mr Y’s complaint.

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Final decision

14. We will not investigate Mr Y’s complaint because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to use his right to approach the court about the matter.

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Investigator's decision on behalf of the Ombudsman