Summary: We will not investigate this complaint about highway maintenance responsibilities. This is because the court is better suited to consider the issues raised in the complaint.

The complaint

1. Mrs Y complained the Council has denied responsibility for the maintenance of a road, despite previously having completed work on it. It has also failed to seek out who has responsibility for the road repairs, only commenting that owners of the frontages are responsible, despite it being such an owner.
2. Mrs Y is concerned about the condition of the highway, and the potential for accidents due to potholes.

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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)

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How I considered this complaint

5. I considered information Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mrs Y complained to the Council in January 2023. The Council responded in February and March, denying fault. Mrs Y approached us in May.

Analysis

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. 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, as is the case here. As these would become documentation considered in court, Mrs Y can also seek copies of such information as part of the court process.
8. 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. Ms 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 Ms Y to be expected to use her right to go to court about this matter.
10. 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.
11. Mrs Y may also wish to approach the Land Registry to ask about the rights and responsibilities over the highway in the records it holds. She may wish to consider seeking independent legal advice if she has questions about her own deeds or searches relating to her property purchase. Any question over such responsibilities would be for the courts to consider where there is a dispute, so we would not investigate such issues.

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Final decision

12. We will not investigate Mrs Y’s complaint because the court is better suited to consider the issues raised in the complaint.

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Investigator's decision on behalf of the Ombudsman