Summary: We will not investigate Mrs X’s complaint about the Council not ensuring a road serving her property has been properly resurfaced. The law allows Mrs X to take this highway maintenance matter to the Magistrates’ court, which it would not be unreasonable for her to do. This takes her complaint outside of our jurisdiction. It would be reasonable for Mrs X to make any claim of property damage due to the highway’s condition to the Council’s insurers then the courts, if required.

The complaint

1. Mrs X lives on a residential estate. Her road required works after a utility company dug it up. The Council asked the estate’s developer to do the work. Mrs X complains the Council:
1. has failed to ensure the road serving her property has been properly reinstated;
2. agreed to the resurfacing being done with the wrong materials.
2. Mrs X wants the Council to either resurface the road or remove all the loose stones and roller the road.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 from Mrs X and the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X disputes the Council’s position that the road as resurfaced and dressed is in an acceptable state. She considers the road is unsightly and that loose chippings and bitumen have caused damage to residents’ vehicles. Mrs X’s view is the Council has not maintained the road to an acceptable standard. She wants it resurfaced or for the present surface to be further compacted and worked on. The Council considers the road’s structure and finish is acceptable. It reviewed the road for several months after the resurfacing, to do further works if required. Officers do not consider the condition of the road in its location on the network warrants any additional work funded from its highways resources.
7. There are no statutes or regulations prescribing the standards to which authorities should maintain their highways. Caselaw indicates it is a highway authority’s general duty to reasonably maintain and repair the highway so that it is free of danger to all users who use it in the way normally to be expected of them.
8. We cannot determine whether a highway authority such as this Council has failed to properly maintain an adopted road. This is a matter for the courts to determine. The law gives people the right to apply to a Magistrates’ court for an order requiring the authority to take whatever action is needed to bring the highway up to standard. The process involves someone serving a notice requiring the authority to repair the highway in question. The authority must reply, confirming if it is the authority responsible for the highway. If it is, the complainant then has six months to apply to the Magistrates’ court for an order under Section 56 of the Highways Act 1980. If the Magistrates agree the highway works must be done, their order would require the highway authority to do that work.
9. This right to put the road maintenance matter before a court takes Mrs X’s complaint outside of our jurisdiction. It would be reasonable for Mrs X to use this process as it is the one provided by national government to resolve road maintenance issues, and because the courts can issue a binding order on the parties, whereas any decision by us may only make recommendations to the highway authority.
10. We note Mrs X’s complaint to us refers to damage by the road’s surface to some residents' vehicles. She does not say whether a vehicle she owns was damaged. In any event, any claim of damage to property by the road’s condition would be one of legal liability against the Council as the body responsible for its maintenance. We cannot determine legal liability claims for property damage. Only an insurer or the courts can make those liability decisions. If Mrs X or any other person considers damage to their property has happened due to the road’s condition, this would be a claim for them to put before the Council’s insurers in the first instance. If the insurer declines their claim, it would then be a matter for them to put before the courts. It would be reasonable for Mrs X or any other person with a claim to use this route if required because the court has the necessary legal expertise to make liability decisions, and they are binding on the parties whereas our decisions may only make recommendations.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• it would not be unreasonable for her to take the road maintenance matter to the Magistrates court, which takes the matter outside our jurisdiction; and
• it would not be unreasonable for her to make any claim of property damage caused by the highway to the Council’s insurers and the courts, if required.

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Investigator's decision on behalf of the Ombudsman