Summary: We will not investigate this complaint about highway maintenance. This is because Mr Y can reasonably be expected to raise the issue with the courts, who are better placed to consider this complaint.

The complaint

1. Mr X complains on behalf of his father, Mr Y, that the Council has failed to carry out repairs to the highway surface which he considers to be defective, despite previously having agreed to carry out the maintenance works in previous complaints correspondence.
2. Mr X says this has caused bitumen to transfer onto Mr Y’s car and into his home. He also says the Council’s handling of the complaint has caused upset to Mr Y.

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The Ombudsman’s role and powers

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. 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))
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 X has told us, Mr Y became aware of the poor state of the highway and complained to the Council in 2019. He says the Council agreed to carry out repairs as part of a surfacing scheme in 2020. While the Council has carried out some repairs to the highway, Mr Y remains dissatisfied with the condition of the road, particularly with sticky patches, which collect and transfer into his vehicle and then his home causing damage to carpets. The Council explained in its complaint response in 2022, that it does not consider there to be any defects or that repairs are now needed. Mr X then approach us in November 2022 on behalf of his father, Mr Y.

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, such as a pension from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary, including having an appointed representative. It is therefore reasonable for Mr Y to be expected to use his 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 would only be able, even if we found fault causing injustice, to ask the Council to consider if repairs are needed, which would not achieve Mr Y’s desired outcome. We will therefore not investigate.
13. Further, as the substantive issue about the condition of the road surface is something we are not best placed to deal with, it is not a good use of public resources for us to investigate how the Council has dealt with Mr Y’s complaint.

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Final decision

14. We will not investigate Mr Y’s complaint because Mr Y can reasonably be expected to raise the issue with the courts, who are better placed to consider this complaint.

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Investigator's decision on behalf of the Ombudsman