Summary: We will not investigate neighbours Mr X and Mr Y’s complaint about the condition of the Council’s highway in front of their driveways. There is not enough evidence of fault in the Council’s process to warrant us investigating. We cannot achieve a key outcome Mr X and Mr Y want. It would be reasonable for them to pursue with the Council’s insurers, and the courts if required, any claim of legal liability for property damage. It would also be reasonable for Mr X and Mr Y to put to a court any case about whether the Council’s highway meets legally acceptable standards.

The complaint

1. Mr X and Mr Y are neighbours who live at the end of a cul-de-sac with off-road parking. They complain the Council has:
1. failed to repair a part of their road in front of their driveways;
2. not properly considered evidence on the matter from them and a local Councillor;
3. not explained how the road’s condition does not qualify it for repairs under its maintenance policy;
4. not provided evidence of officers’ inspections;
5. not explained what work they as residents might do to the road.
2. Mr X and Mr Y say the disrepair is a health and safety issue. They say at some point in the future someone will fall and hurt themselves, access to their properties is made difficult by the road and it has caused damage to cars
3. Mr X and Mr Y want the Council to repair the area, inspect it with residents present and explain why they are not repairing the road, showing evidence of their inspections.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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

7. I considered information from Mr X and Mr Y, and the Ombudsman’s Assessment Code.

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My assessment

8. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
9. In response to Mr X and Mr Y’s concerns, the Council considered information from them, their local Councillor and a site visit. Officers determined the evidence did not justify them prioritising their location for works under its policy. The Council has told Mr X and Mr Y that the road does not have defects which require investigation, is not unsafe and is fit for purpose, and was found at an autumn 2024 inspection not to have defects. Officers decided the Council would not do work to the road because Council funds could be more effectively spent elsewhere on its highways network.
10. We note Mr X and Mr Y do not believe the Council has inspected the site and say it has not provided evidence that it has. The Council says it made at least one inspection in 2024. But even if officers have not visited, it is for them to gather evidence as they see fit when using their professional judgement to decide where the Council uses its resources, including which roads require repairs before others. That is a decision they are entitled to make in their roles. There is not enough evidence of fault in the Council’s decision‑making process here to warrant an investigation. We recognise Mr X and Mr Y disagree with the Council. But it is not fault for a council to properly make a decision with which someone disagrees.
11. The key practical outcome Mr X and Mr Y want from their complaint is for the Council to do works to the road. We cannot order councils to reprioritise works at a complained-of location on its highway network. That we cannot achieve this core outcome is a further reason why we will not investigate.
12. Mr X and Mr Y say the condition of the road has caused damage to vehicles. This is a claim of legal liability for property damage. They can make an insurance claim against the Council if they consider its actions or inactions regarding the road's condition have led to damage to their vehicles. If their claim is refused, it would be reasonable for them to take their claim to court. We cannot determine issues of legal liability for damage to property. It would be reasonable for Mr X and Mr Y to pursue any claim in court because only the courts can make that legal determination, and their decisions are binding whereas we may only make recommendations.
13. Mr X and Mr Y may believe the road in front of their driveways is not up to a suitable standard. It is not our role to judge the standard of councils’ roads. That is a matter for the courts, as set out in the Highways Act 1980. The 1980 Act also details the factors the court should consider when deciding whether a road is of an acceptable standard. If Mr X and Mr Y want a decision on whether the road meets legal requirements, it would be reasonable for them to pursue this in court because only the courts can make that determination. They may wish to seek independent legal advice if taking that route.
14. Mr X and Mr Y say they have asked the Council to tell them what works they as resident could do to the highway. As highway land, works to it would be for the authority or body which owns it to control. Any landowner would have to be in full agreement with work done to their land by another party. If Mr X and Mr Y propose to change the highway land, they could make their suggestion to the relevant officer but not do works before an agreement is in place.

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Final decision

15. We will not investigate Mr X and Mr Y’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• we cannot achieve the key outcome they want; and
• it would be reasonable for them to pursue with the Council’s insurers, and to court if required, any claim of legal liability for property damage; and
• it would be reasonable for them to put before a court any case about whether the Council’s highway meets legally acceptable standards.

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Investigator's decision on behalf of the Ombudsman