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

The complaint

1. Mr Y complained the Council has failed to adequately repair the highway outside his home, despite him reporting issues nine times.
2. Mr Y says this has caused damage to his home, which he is having repaired through his home insurer, but he is concerned the problems, including in his home will continue unless the road is fully repaired.

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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))

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How I considered this complaint

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

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My assessment

6. Mr Y has said that the Council’s alleged failure to repair the highways adequately has led to his property being damaged. He has approached his home insurer, but where he considers the Council responsible for the cost of repairs, he would need to consider making a negligence claim, either through his own home insurer as he has an ongoing insurance claim or directly to the Council’s insurer.
7. 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. 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. We will not investigate this complaint.
8. Further, Mr Y can use his rights under section 56 of the Highways Act 1980 to seek an order from the Magistrates Court to have the road repaired further if the current repairs are insufficient.
9. While the Council has a statutory duty to monitor and maintain adopted highways, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation. The courts can however determine if the Council has met the required level for maintenance of the highway.
10. This is not a decision which the Ombudsman can make, we can only consider how the Council made its decision on what, if any, action to take in response to a report of disrepair of the highway. Consequently, the courts are better placed to consider the complaint. 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

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

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Investigator's decision on behalf of the Ombudsman