Summary: We will not investigate Mrs X’s complaint about sunken metal grids in the highway outside her home. This is because the Council says it is not responsible for the grids and if she wishes to challenge its position it would be reasonable for her to ask the court to consider the matter.

The complaint

1. The complainant, Mrs X, complains she is experiencing noise and vibrations as a result of the poor state of the highway and sunken metal grids outside her home.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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

4. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X has reported her concerns about the state of the highway to the Council but it has explained the grids, which are the main cause of the issue, are the responsibility of the gas company. It has agreed to refer the matter to them but also suggested Mrs X contact them directly, as she has done several times over the past few years. Mrs X believes the issue is the Council’s responsibility as it is the highway authority.
6. The Highways Act 1980 places a duty on highway authorities to maintain the public highway but it is not for us to determine whether the Council has met this duty or whether it is responsible for doing so. If Mrs X wishes to challenge the Council’s position she may serve notice on the Council under Section 56 of the Act and ask the court to make a decision. She may also ask the court to consider her claim for damages resulting from the vibrations to her home.

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Final decision

7. We will not investigate this complaint. This is because it would be reasonable for Mrs X to serve notice on the Council under Section 56 of the Highways Act 1980 and take the matter to court.

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Investigator's decision on behalf of the Ombudsman