Summary: We will not investigate this complaint the Council has breached its duties under the Highways Act 1980, by not maintaining Mr Y’s road. Mr Y has an alternative legal remedy to apply to the Magistrates Court for an order, requiring the Council to carry out the work, and it would be reasonable to expect him to use this alternative legal remedy.

The complaint

1. Mr Y complained the Council was in breach of its duty to maintain his road, under the Highways Act 1980. He said this was because of potholes and other structural deficiencies, and the road was a hazard to pedestrians and road users. He wants the Council to re-surface his road.

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The Ombudsman’s role and powers

2. 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

3. I considered information provided by the complainant and I considered the Ombudsman’s Assessment Code.

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My assessment

4. 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 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.
5. In this case, Mr Y says the road is not in a suitable state of repair and has reported this to the Council. The Council has inspected and has agreed in some areas, Mr Y’s road requires work to some sections in most disrepair, and it has planned to do this. However, it also said it has no plan to re-surface the road entirely. Mr Y is unhappy with the Council’s intention on how it will approach the repairs.
6. In such cases, where a person, such as Mr Y, 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.
7. Mr Y may use this process to try to get the Council to repair the road further if he remains dissatisfied with the level of repair. There might be some cost to court action. However, that does not mean it is unreasonable to take court action.
8. Additionally, we could not direct the Council on when it should carry out this work, or the level of work that it needs to do. Only the court can order the Council to do the work, and therefore it is reasonable for Mr Y to use this alternative legal remedy.

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Final decision

9. We will not investigate Mr Y’s complaint because he has an alternative legal remedy, and it is reasonable to expect him to use this right.

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Investigator's decision on behalf of the Ombudsman