Devon County Council (23 017 102)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 01 Mar 2024
The Ombudsman's final decision:
Summary: We will not investigate Ms X’s complaints about highway disrepair. This is because the law provides an alternative remedy for the issue and we consider it would be reasonable for her to use it in this case. If Ms X wishes to pursue the matter she may serve notice on the Council and go to court. She may also make a claim for any damage to her property or personal injury.
The complaint
- The complainant, Ms X, complains the Council has failed to fix a blocked drain and potholes in the road. She says this has caused flooding to her driveway and led to her tripping and suffering an injury.
The Ombudsman’s role and powers
- 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’.
- 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)
How I considered this complaint
- I considered information provided by Ms X and the Ombudsman’s Assessment Code.
My assessment
- Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Caselaw has established this duty applies to blocked drains which run under the highway as well as defects in the surface of the highway itself.
- Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. However, while 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.
- 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 Ms 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.
- If Ms X believes the Council has failed to properly maintain the highway outside her property she may serve notice on the Council and if it does not act she may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Ms X wishes to pursue this matter it would be reasonable for her to follow the process set out above.
- The courts can also consider any claim for damage to Ms X’s property and for the injuries she suffered when she tripped over the pothole. As part of any claim the court must consider whether the Council can rely on the defence provided by Section 58 of the Highways Act 1980 and it would not be appropriate for us to deny the Council the ability to exercise this defence at court.
Final decision
- We will not investigate this complaint. This is because it would be reasonable for Ms X to take the matter to court.
Investigator's decision on behalf of the Ombudsman