Summary: We will not investigate this complaint about highway maintenance. This is because the courts are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to properly repair several potholes he has reported in his area, with some unrepaired or with repairs made which are inadequate. He also complained about the Council’s poor handling of his complaint correspondence.
2. Mr Y feels frustrated and upset at the handling if his contacts by the Council. He is also frustrated at the Council’s actions as he feels it is a waste of resources for them to not repair the roads.

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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 and the Ombudsman’s Assessment Code.

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My assessment

7. 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.
8. If a person considers that a highways authority has failed to maintain a highway it is responsible for or failed to carry out repairs to a satisfactory standard, 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.
9. 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.
10. Mr Y may use this process to try to get the Council to repair the road adequately. 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 his right to go to court about this matter.
11. 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.
12. As we are not considering the substantive issue, it is not a good use of public resources to investigate how the Council has dealt with Mr Y’s complaints. We will not investigate.

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Final decision

13. We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman