Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mr Y to take the matter to court if he wishes to pursue his complaint.

The complaint

1. Mr Y complained the Council has failed to properly identify fault and carry out repairs on the road network in his area. He also complained the Council has failed to properly maintain and supervise local parking meters in his area, meaning that dead or disabled people, such as himself, cannot pay for parking.
2. Mr Y says the road maintenance problems have led to multiple potholes, causing a danger to the public and the lack of maintenance of the payment machines have caused him inconvenience as he has had to park elsewhere when he could not pay for parking.

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The Ombudsman’s role and powers

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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y has complained that the parking payment meters in his local area are often out of repair and are not properly maintained and supervised for issues. He says this means that those who are hard of hearing or deaf, as well as others who have disabilities are unable to pay as the only other option for payment is using a telephone payment system. He says this has led to him having to make more journeys because he has had to leave where he has parked as he has been unable to pay.
7. The Council said it had ensured all parking meters still accepted cash and card payments. It said that a contractor, working on its behalf, regularly monitors the machines for faults and would respond to repair any problems with machines when these were reported by the public.
8. As the Council has implemented a system to monitor the payment meters and a reactive service for when maintenance is needed to repair a fault, there is not enough evidence of fault to justify investigation. It has identified that some people cannot pay using a telephone system, and has kept payments for both cash and card at its payment meters. This ensures that even where a telephone is not working, or where a person cannot use this system, payment can still potentially be made. It is unlikely we would find fault with this. We will not investigate.
9. Mr Y has also complained about the maintenance of local roads, which he says are not being properly assessed, leading to issues such as road subsidence to continue, unrepaired.
10. The Council as a local highways authority has a statutory duty to maintain adopted streets. 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.
11. 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.
12. Mr Y may use this process to try to get the Council to repair the road where he feels there are defects. This includes where Mr Y feels there are defects which need repair but the Council disagrees. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often 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 his right to go to court about this matter.
13. 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, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

14. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mr Y to take the matter to court if he wishes to pursue his complaint.

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Investigator's decision on behalf of the Ombudsman