Summary: We will not investigate Mr X’s complaint about the Council’s failure to repair a pothole outside his property. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to repair the road surface outside his property. He says water pools on the surface and splashes towards his property. Mr X is unhappy he has been hit by dirty water from the road and that over time it will stain his wall.

Back to top

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 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

5. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
6. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
7. We cannot interpret the law to decide if the Council has fulfilled its obligations under Section 41 the Highways Act 1980 in this case. However, the Act provides a mechanism for Mr X to raise the matter with the court and seek a view on whether it has done enough. This is set out at Section 56 of the Act.
8. If Mr X believes the Council has failed to properly maintain the highway outside his property he may serve notice on the Council and if it does not act he may apply to the court for an Order requiring it to carry out repairs.
9. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
10. Mr X may also make a claim against the Council at court if he believes it is responsible for any damage to his property.

Back to top

Final decision

11. We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

Back to top

Investigator's decision on behalf of the Ombudsman