Summary: We will not investigate this complaint about the Council’s road repairs procedures. The allegedly inadequate procedures have not caused a significant enough injustice to warrant investigation.

The complaint

1. Mr X complains the Council uses inadequate procedures of assessment, commissioning, and quality control to ensure it properly maintains highways in its area. He says this leaves roads in a defective state with the risk of injury and damage to him, his family and others. Mr X wants the Council to improve its procedures to reduce or remove those alleged risks.

Back to top

The Ombudsman’s role and powers

2. 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)
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 any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. The law says a complaint to the Ombudsman may only be made “…by a member of the public who claims to have sustained injustice in consequence of the matter…” (Local Government Act 1974, section 26A(1)(A)) The underlining I have added means the claimed injustice must already have happened. We cannot consider a claimed injustice that might happen in the future.

Back to top

How I considered this complaint

5. I considered information provided by the complainant and copy correspondence from the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. In deciding whether to investigate a complaint, we will not automatically investigate just because of an allegation a Council is at fault. We must consider the effect of the alleged fault on the person complaining, and the wider public interest, when deciding whether a complaint warrants us investigating.
8. Mr X suggests the alleged faults in the Council’s procedures contributed to a road accident in which he was injured. That incident was the subject of a previous complaint to us. We will not consider it again.
9. Mr X argues the Council’s alleged faults leave him and others at risk of injury or damage to vehicles when using the roads. We cannot consider any future possible injustice to Mr X or others because it has not yet happened and is a matter of guesswork.
10. I understand the fear of the risk of harm becoming a reality might amount to an injustice in itself. I also recognise there might be an argument for a public interest in investigating the Council’s procedures. However:
1. Assessing road condition, commissioning works, and monitoring the quality of work are parts of a process that leads to a result, namely the state of repair of highways in the Council’s area. It is not for us to decide whether the roads are in proper repair, or whether the Council gives repairs the right priority or completes them quickly enough.
2. The Highways Act 1980 says in section 56 it is for a court to decide whether a highway authority has maintained a highway properly and therefore met its duty. That includes whether the standard of repairs is enough. It is not therefore our role to do that.
11. It follows we have no basis to investigate the procedure by which the Council carries out its duties when we have no power to decide on the actions it takes as a result.
12. If Mr X were to believe there was a specific defect or defects on the Council’s roads, he could reasonably use his right under section 56 of the Highways Act 1980 to apply to the court for an order for the Council to repair the defect.
13. But Mr X has told us:

“I do not want to get the Council to fix any explicit part of the Highway…”

And:

“I do not feel that the Council has failed in its duty to maintain the highway at all. The council has failed to use adequate procedures for risk-assessing the severity of faults while undertaking its day to day work to meet its duty to maintain the highway - and that sits within the remit of your service.”

14. I understand Mr X might not therefore use the section 56 right as he does not allege any particular defect on the roads. However, that also means Mr X has not yet suffered any injustice on which to base a complaint. Even if he had, however, it would remain the case the underlying issue would be one for a court of law.

Back to top

Final decision

15. We will not investigate Mr X’s complaint. The Council’s allegedly flawed procedures have not caused a significant enough injustice to warrant investigation. We cannot investigate a claim that injustice might happen in the future.

Back to top

Investigator's decision on behalf of the Ombudsman