Summary: We will not investigate this complaint about highway repair and maintenance because there is a body better placed to consider the complaint and it is reasonable to expect Mr Y to approach the courts about the issue.

The complaint

1. Mr Y complained the Council has failed to take responsibility to repair an eroding ditch in its area, despite Mr Y providing evidence that it is the Council’s responsibility.
2. Mr Y says he took time and trouble to complain about the issue and is concerned about the safety of the area for his young children and other members of his family.

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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. 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

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

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My assessment

6. Where there is a dispute over land rights and responsibilities and where these begin and end, it is for the courts, not the Ombudsman, to determine the extent to which each party has said rights. We do not have the power to determine such issues. As the courts are able to do this, the courts are better placed to consider this complaint. Consequently, we will not investigate.
7. Further, as the highways authority for the area, 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.
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. This order requires the highways authority to carry out the work needed to the highway and this can include any drainage.
9. Mr Y may use this process to try to get the Council to repair the ditch if he believes it is responsible for this. 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 this 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.

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Final decision

11. We will not investigate Mr Y’s complaint because there is a body better placed to consider the complaint and it is reasonable to expect Mr Y to approach the courts about the issue.

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Investigator's decision on behalf of the Ombudsman