Summary: We will not investigate this complaint about highway maintenance because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to go to court.

The complaint

1. Mr Y complained the Council has failed to clear drainage grids in several locations across its area, despite Mr Y reporting large pools of water covering the highway, which he feels is a safety hazard.
2. Mr Y says he has been caused frustration by the Council’s lack of action.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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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. Mr Y is unhappy with the grids in his area which provide drainage of rainwater from various road junctions. The Council has considered Mr Y’s complaint, inspected the sites and have determined that further investigation into the issues were needed and potentially that work would be required. It explained to Mr Y that it would prioritise the work based on the urgency of the need for any repairs.
7. The Council as a local highways authority has a statutory duty to maintain adopted streets including their drainage. 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.
9. 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. Mr Y can use this process to try to get the Council to repair the drainage issues he has complained about. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. In some cases there is 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.
11. 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, where we can only recommend it considers this, which it has already done, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

12. We will not investigate Mr Y’s complaint because the court is better placed to consider the complaint and it is reasonable to expect Mr Y to go to court.

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Investigator's decision on behalf of the Ombudsman