Summary: We will not investigate Mr X’s complaint about the Council not fixing a road defect next to his property for several years, and closing his report about the defect. Events before April 2023 are late and there are no good reasons to investigate them. There is not enough evidence of Council fault, nor enough significant personal injustice to Mr X to warrant us investigating. We also cannot achieve the complaint outcome he seeks. It would be reasonable for Mr X to pursue at court any finding on whether the Council’s highway meets legal standards. It would also be reasonable for him to pursue any claim of property damage he considers has been caused by the Council with its insurers and the courts.

The complaint

1. Mr X has a property with a front garden and driveway. He complains the Council:
1. has failed to fix a defect in the road next to his front garden;
2. closed his report about the defect despite not fixing it.
2. Mr X says part of the road is sinking, damaging his property as his garden lawn and drive is sloping towards it. He says the defect affects larger vehicles as they get stuck, and barriers the Council has put around the area are partly on his lawn so he cannot maintain it. He wants the Council to fix the road.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants; and
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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

7. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

8. Mr X’s complaint refers to reports he made to the Council about the same road defect going back about four years. We expect people to complain to us about something they consider a council has done wrong within 12 months of them becoming aware of it. Mr X brought his complaint to us in April 2024. He would have known about the Council’s actions and responses to those earlier reports for over 12 months. Any complaint about the Council’s actions relating to the road defect before April 2023 is therefore late.
9. We have discretion to investigate late complaints but only where there are good reasons to do so. Mr X’s reports to the Council about the defect before April 2023 show he was able to complain to us sooner and within 12 months. There are no good reasons for us to investigate any events prior to April 2023 now so we will not do so.
10. The part of the complaint which is in time starts in April 2023, being 12 months before Mr X made his complaint to us. From April 2023, Mr X made at least three reports about the road defect in that year, and then in February 2024. The Council placed the defect on its list of works. Officers visited and assessed the site several times during 2023. By early 2024 officers had determined that further investigation of the cause of the fault, including a ground survey, was needed before they decided what repair works should be done. Mr X considers the Council should not have closed his report of the defect without fixing it, instead saying they would be investigating further.
11. We are not an appeal body. We cannot go behind a council’s decision solely because a complainant disagrees with it. We must consider whether there was fault in the council’s decision-making process. In this case, while awaiting the ground survey, the Council says it continues to inspect and monitor the defect, responding to reports and maintaining it as necessary. Officers will have noted the location and the level of traffic it receives when assessing what priority the works should have. It is for officers to gather evidence and apply professional judgement to decide where the Council uses its resources, including which repairs to prioritise. There is not enough evidence of fault in the Council’s processes in prioritising its road works, or closing Mr X’s report before doing the repairs, to warrant an investigation. We recognise Mr X may disagree with the amount of priority the Council has given the works. But it is not fault for a council to properly make a decision with which someone disagrees.
12. Even if there has been fault by the Council here, we will not investigate. The defect would not cause a significant hazard to Mr X or others in his household, or prevent use of the driveway. The Council’s barriers around the area include part of his front garden, but the impact on Mr X being unable to maintain that part of his lawn is low. We recognise the circumstances while awaiting the repair will have caused Mr X some annoyance, inconvenience and frustration. But there is insufficient significant personal injustice to him from these impacts during the period within our jurisdiction to warrant us investigating. Any effects on drivers of large vehicles from the road defect would not be Mr X’s injustice.
13. The outcome Mr X wants from his complaint is for the Council to fix the road. We cannot order councils to do work to the highway, nor order them to speed up particular highway works. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.
14. We recognise Mr X may consider the condition of the Council’s road is not up to a suitable standard. It is not our role to judge the standard of council roads. That is a matter for the courts, as set out in the Highways Act 1980. They are the body better placed to make such a ruling. The 1980 Act also details the factors the court should consider when making its decision. If Mr X wants a ruling on whether the Council’s highway meets legal requirements, it would be reasonable for him to pursue this in court because only the courts can make that determination. He may wish to seek independent legal advice if taking that route.
15. We understand Mr X considers the Council’s highway land has damaged his property. This would be a claim of Council liability for property damage. If Mr X considers the Council is responsible for damage to his property, he would need to refer the matter to its insurers in the first instance. If he is dissatisfied with the outcome of his claim, he could then take his case to the courts. It would be reasonable for Mr X to pursue this route because only insurers or the courts can make liability findings on claims for property damage. An Ombudsman investigation cannot make legal liability findings on property damage claims.

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Final decision

16. We will not investigate Mr X’s complaint because:
• events before April 2023 are late and there are no good reasons to investigate them now; and
• there is not enough evidence of Council fault to warrant us investigating; and
• even if there was fault, there is not enough significant personal injustice caused by the matters complained of to justify an investigation; and
• we cannot achieve the outcome he seeks; and
• it would be reasonable for him to pursue at court any finding on whether the Council’s highway meets legally acceptable standards; and
• it would be reasonable for him to pursue any claim of property damage he considers has been caused by the Council with its insurers and the courts.

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Investigator's decision on behalf of the Ombudsman