Summary: We will not investigate this complaint about highway maintenance because it is reasonable for Mr Y to be expected to approach the courts in this matter, who are better placed to consider the issue.

The complaint

1. Mr y complained the Council has failed to repair a pothole on the road outside his property and has given him an incorrect date when it is due for repair. Mr Y says he has now, with the assistance of his MP been able to have the pothole partially repaired.
2. Mr Y says the vibrations from vehicles driving over the pothole are causing the building his flat is in to vibrate, causing his sleep to be affected and potentially damage to the building foundations.

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The Ombudsman’s role and powers

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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

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

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My assessment

7. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
8. In this case, Mr Y says the road is not in a suitable state of repair and has reported this to the Council. The Council has inspected and has now carried out a temporary repair before it completes more permanent work. Mr Y is dissatisfied with the existing, temporary repair.
9. In such cases, where a person, such as Mr Y, considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
10. Mr Y may use this process to try to get the Council to repair the road further if he remains dissatisfied with the level of repair. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
11. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.
12. Mr Y has also complained about the response he received to his complaint, including when he was given incorrect dates for when repair work was due to take place by the Council. In this instance, the correspondence shows that the error was corrected and where staff may have spoken to Mr Y in a poor manner they have been given feedback to prevent recurrence of the issue. As this is a remedy we may have considered recommending if we were to investigate, it is unlikely further investigation would lead to a different outcome. Further, when we are not investigating the substantive manner, it is not a good use of public funds to investigate how a complaint was dealt with by a council. Therefore we will not investigate this issue.

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Final decision

13. We will not investigate Mr Y’s complaint because it is reasonable for Mr Y to be expected to approach the courts in this matter, who are better placed to consider the issue.

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Investigator's decision on behalf of the Ombudsman