Summary: We will not investigate this complaint about highway maintenance because there is another body better placed to consider this complaint.

The complaint

1. Mr Y complained the Council has failed to repair a road outside his home, and use of the road by a nearby company has led to further damage to the highway, causing increased noise and damage to his property.
2. Mr Y says he has had to install acoustic double glazing and would like to be reimbursed for this and for the cost of repairs to his home when rainwater splashing against his wall has caused dampness. He also says the road surface has become rough terrain, impacting his sleep and general wellbeing.

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The Ombudsman’s role and powers

3. We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y says in June 2022 the Council marked his road for resurfacing works due to numerous potholes. He says he was told it would be completed within four weeks. Mr Y believes the potholes have been made worse by a local company using the road repeatedly to access a larger highway. He complained to the Council in February 2023, with work being done by the Council in March, before Mr Y approached us in June 2023.

Analysis

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 or has carried out inadequate repairs, 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.
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 if he feels it remains in an unsuitable condition after the works carried out in March 2023. 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 her 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. Further Mr Y says it is due to the inaction of the Council, or its agreement to allow the company to use the highway through planning permission, that his property has suffered damage and he has had to install new windows due to the noise.
13. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
14. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs or new windows, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or insurers. It is therefore reasonable for Mr Y to pursue his claim through either his insurer or the courts. We will not investigate this complaint.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman