Summary: We will not investigate this complaint about highway maintenance because there is another body better placed to consider this complaint.

The complaint

1. Mr Y complained the Council has failed to repair and maintain the road outside his home and works which have been done have been of a poor standard. He is also unhappy with the way his complaint was dealt with and the poor communication in his complaint.
2. Mr Y says the issue is causing his house to vibrate and causing damage to his home, causing him worry and frustration. He says he has also had to take time to contact the other parties involved himself.

Back to top

The Ombudsman’s role and powers

3. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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

Back to top

How I considered this complaint

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

Back to top

My assessment

6. 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, depending on their classification 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.
7. If a person 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. It can also consider whether the Council has classified the road correctly where this is disputed.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
9. Mr Y may use this process to try to get the Council to repair the road. 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.
10. 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.
11. Mr Y also says damage has been caused to his property due to the poor condition of the highway. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
12. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for investigations and subsequent repairs to his property, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts. We will not investigate this complaint.
13. As we are not investigating the substantive issue, it is not a good use of public funds to investigate how the Council dealt with Mr Y’s complaint.

Back to top

Final decision

14. We will not investigate Mr Y’s complaint because there is another body better placed to consider this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman