Summary: We will not investigate Mr B’s complaint about the Council not repairing a defective section of road which causes his home to vibrate when vehicles pass. This is because it is reasonable for Mr B to pursue this matter at court, which is in the best position to decide if the Council has met its duty to maintain this road.

The complaint

1. Mr B complains the Council is failing to maintain a main road close to his home. Mr B says dips in the road cause extreme vibrations and noise in nearby properties when vehicles pass. Mr B says he has been reporting this issue for over two and a half years but the Council has wrongly decided the condition of the road is acceptable.

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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 Mr 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 highways. 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 met this statutory maintenance duty.
8. Mr B has two options to pursue this matter at court.
9. First, Mr B may apply for an order from the court.
10. 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.
11. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
12. Mr B and any other affected residents may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B to do this. 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.
13. Second, if Mr B considers his property is being damaged by vibrations from this section of road he may put in a claim to the Council’s insurers.
14. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts.
15. If needed, I find it is reasonable for Mr B to take the Council to court, directly or via his home insurer.
16. So, we will not investigate this complaint.

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Final decision

17. We will not investigate Mr B’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman