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

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council has failed to maintain the road outside his home. Mr B says the road required repair after a drain collapsed but the Council only did a patch repair rather than re-surface the full width of the road. Mr B says the road has started to sink again and is getting worse. Mr B says this is a hazard and the Council is wrong to say the condition of the road is acceptable. Mr B would like the Council to arrange an independent inspection of the condition of the road.

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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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council has told Mr B the Highways Inspector inspected this section of road after the repair works were undertaken. The Council says the Inspector did not consider the area in question met the Council’s investigatory levels for further repairs to be done.
7. The Council added that it will continue to inspect the road twice each year. Also, the Council said it will undertake further repair work if it identifies that this dipped section of road meets the Council’s investigatory levels.
8. Mr B disagrees with the Council’s assessment. Mr B says the condition of the road is a hazard to road users.
9. 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 inspections, and threshold for repairs is not set out in law and is open to interpretation.
10. 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.
11. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
12. Mr B may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B and other affected residents to do this. The court is in the best position to independently assess the condition of the road and 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.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to take this matter to court.

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Investigator's decision on behalf of the Ombudsman