Summary: We will not investigate this complaint that the Council’s failure to maintain road markings caused the complainant to sustain injuries in an accident. It is reasonable to expect the complainant to use the alternative court remedies which are available.

The complaint

1. Mr X says the Council failed to properly maintain road markings on its cycle network, which caused him to sustain severe injuries in an accident.

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The Ombudsman’s role and powers

2. We can 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. So, we do not start an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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)

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How I considered this complaint

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

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My assessment

5. If Mr X believes the Council is liable for the injuries he sustained, the Ombudsman would normally expect him to pursue a claim via the courts. This is because it is essentially an allegation of negligence, and only the courts can decide if the Council has been negligent and is liable for Mr X’s injury. The courts also have the power to award damages against the Council. The Ombudsman has no such powers to enforce an award of damages.
6. And more generally, if Mr X thinks the Council is failing in its duty to properly maintain the highway, he can apply to the courts for an order to made, under s.56 of the Highways Act 1980, requiring it to carry out works. The Ombudsman would normally expect someone to use this process to try to get the Council to take action, because 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. 

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Final decision

7. We will not investigate Mr X’s complaint because it is reasonable to expect him to use the alternative court remedies which are available to him.

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Investigator's decision on behalf of the Ombudsman