Summary: We will not investigate Mrs B’s complaint that the Council is failing to maintain the road where she lives. This is because it is reasonable for Mrs B to pursue this matter at court.

The complaint

1. Mrs B complains the Council is failing to maintain the road where she lives. Mrs B says the road is full of potholes and gullies, and the Council has only repaired some of the smaller potholes. Mrs B says when large vehicles drive over the defects her whole house vibrates and it causes a noise nuisance. Mrs B also says the vibrations are causing cracks in the walls and ceilings of her home. Mrs B would like the Council to repair all the defects on the road.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act 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 Mrs B.
5. I considered the Ombudsman’s Assessment Code.

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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 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. We take the view the courts are in the best position to decide whether a local highways authority has complied with this statutory duty to maintain a highway.
8. 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.
9. This order requires the highways authority to carry out the work needed to the highway. 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.
10. Mrs B may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs B to do this.
11. The court is in the best position to decide whether the Council has met its legal duty to maintain the road. Also, unlike the Ombudsman, the court can order the Council to do the required work.
12. In addition, if Mrs B considers her property is being damaged because the Council is not maintaining this road, she may put in a claim on the Council’s insurance, directly or via her home insurer.
13. We take the view that complaints about property damage are best decided by an organisation’s insurers, and if needed, the courts. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. Also, unlike the Ombudsman, the courts can order a party to pay damages.
14. Because of the seriousness of the issue complained about, I find it is reasonable for Mrs B to take the Council to court if needed.
15. So, we will not investigate Mrs B’s complaint.

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Final decision

16. We will not investigate Mrs B’s complaint because it is reasonable for her to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman