Summary: We will not investigate this complaint about highway maintenance and repair because it is reasonable to expect Mr Y to go to court about the matter, who are better placed to deal with the complaint.

The complaint

1. Mr Y complained the Council has failed to maintain and repair several roads in his area properly, using only substandard repairs. He is also unhappy about the Council’s response to and handling of his complaint.
2. Mr Y says his vehicle has been damaged because of the poor road repairs, which he feels wastes taxpayers’ money and feels the Council does not care about his concerns or safety of the public.

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The Ombudsman’s role and powers

3. 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)
4. 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))
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

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

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My assessment

7. 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.
8. If a person, such as Mr Y, considers that a highways authority has failed to maintain a highway it is responsible for properly, 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.
9. If disputed or the work is not carried out after the order, the person may apply to the Crown court for such an order.
10. Mr Y may use this process to try to get the Council to repair the roads in his area. 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 if he wishes to pursue the repairs further.
11. 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.
12. Mr Y has also said his vehicle has been damaged by the poor state of the Council’s roads and as a result he is at a financial loss. 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 or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
13. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his car, which Mr Y considers the Council to be responsible for and may wish to pursue reimbursement for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either his insurer or the courts. We will not investigate this complaint.
14. As we are not investigating the substantive issues in this complaint, it is not a good use of public resources and public funding to investigate how the Council dealt with or responded to Mr Y’s complaint. We will not investigate this.

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Final decision

15. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to go to court about the matter, who are better placed to deal with the complaint.

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Investigator's decision on behalf of the Ombudsman