Hampshire County Council (24 010 655)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 14 Nov 2024
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint that the Council has failed to properly maintain public highways. This is because it would be reasonable for Mr X to take the matter to court.
The complaint
- Mr X complains the Council has failed to act on cases of public highway disrepair in his area. He is also unhappy with how his complaint has been dealt with. Mr X says the issue caused a family member injury.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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.)
- 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.
How I considered this complaint
- I considered information provided by the complainant.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities should routinely monitor the state of highways for which they are responsible and carry out repairs where necessary.
- The Council’s duty to maintain public highways is set out in law, but the level of maintenance, frequency of inspections and threshold for repairs is not. This means that this is open to interpretation.
- If Mr X believes the road is out of repair and that the Council should fix it, it would be reasonable for him to take the matter to court. Section 56 of the Highways Act 1980 allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts can decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow this process. It would also be reasonable to pursue any personal injury matter in court. This is because section 58 of the 1980 Act gives the Council a legal right to put forward a defence in court against claims for loss or injury, and we have no power to remove that right by investigating.
- Mr X is also unhappy about the way the Council dealt with his complaint. Where we do not investigate a complaint about the main or underlying issue, we do not normally investigate related issues either, including the Council’s handling of the issue. There is no good reason for us to do so here.
Final decision
- We will not investigate Mr X’s complaint because it is reasonable to expect Mr X to approach the courts, as only a court could deal with this matter.
- There is no good reason for us to consider how the Council dealt with Mr X’s complaint as we are not investigating the substantive matter.
Investigator's decision on behalf of the Ombudsman