Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to repair a pavement which is subsiding outside his home. This has caused damage to his boundary wall, which is now cracked, and he is concerned is now a safety hazard.

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The Ombudsman’s role and powers

2. 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)
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))

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How I considered this complaint

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

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My assessment

5. 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.
6. 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.
7. If the highways authority does not accept it is responsible for maintaining the road, the person may apply to the Crown Court for such an order if necessary.
8. Mr Y may use this process to try to get the Council to repair the subsidence in the pavement. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. Mr Y may be able to make a claim for the costs incurred by going to court if he is successful. Also there is often financial assistance to those of a low income from HM Courts and Tribunal Service. 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.
9. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway as, 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.
10. Mr Y says he has been told by the Council that the subsidence in the pavement is the responsibility of a utility company which carried out works. However, Mr Y disagrees and considers the Council to be responsible for the highway maintenance and the damage to his wall.
11. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property. These are legal claims which may only be determined by insurers or the courts.
12. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through the courts. We will not investigate this complaint.

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Final decision

13. We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman