Summary: We will not investigate Mr X’s complaint about the Council’s decision not to require its contractor to re-dress his road. The Council does not consider the road is out of repair and if Mr X disputes its decision it would be reasonable for him to challenge it at court.

The complaint

1. The complainant, Mr X, complains the Council failed to ensure its contractor carried out remedial works to his road and has now decided not to re-dress the road at all, despite its previous agreement to do so.

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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.
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)
5. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

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

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My assessment

7. Mr X has raised concerns about the state of his road, following a surface dressing in 2019 which failed, since January 2020. The Council told him in 2021 and 2022 that its contractor intended to re-dress his road and others where the dressing had failed, but it did not do so.
8. Mr X complained about the Council’s failure to ensure the remedial works went ahead in August 2023. He is unhappy the works have still not been carried out and that the Council would now have to pay for them at significant cost to the taxpayer, rather than having the contractor bear the cost.
9. The Council’s response to Mr X’s complaint explained that as a result of further investigations it has come to the view that remedial measures by the contractor are not required. It has therefore decided not to require the contractor to re-dress the road surface, or to carry out the work itself.
10. Mr X is unhappy with the Council’s decision as he believes the road remains out of repair. He is also unhappy that taxpayers will now bear the burden of any costs to repair or re-dress the road in the future.
11. The use of taxpayer money to carry out repairs to Mr X’s road is a matter which affects ‘all or most’ of the people in the Council’s area. It is not therefore subject to investigation by the Ombudsman as set out at Paragraph 5.
12. We also cannot determine whether the road is ‘out of repair’ and therefore whether the Council is required to take action to repair it. Its duty to maintain public highways derives from the Highways Act 1980 and any claim that it has failed to comply with its duty is a matter for the courts. If therefore Mr X believes the road is out of repair it would be reasonable for him to follow the process set out at Section 56 of the Act. This allows him to serve notice on the Council and apply to the court for an order requiring repairs.
13. While I appreciate the Council’s correspondence in 2021 and 2022 raised Mr X’s expectations about the possibility of the contractor re-dressing the road as he believes it should, this issue did not cause Mr X significant injustice that would warrant further investigation. Ultimately he has complained to us now because the Council has confirmed it will not, whether directly or through its contractors, carry out repairs to the road and it is for the courts to decide if its decision is correct.

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Final decision

14. We will not investigate this complaint. This is because it would be reasonable for Mr X to challenge the Council’s decision not to carry out repairs to his road at court.

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Investigator's decision on behalf of the Ombudsman