Summary: We will not investigate this complaint about highway repair and maintenance because it is reasonable to expect Miss Y to approach the courts who are better placed to consider the complaint.

The complaint

1. Miss Y complained that following work on the infrastructure under the road she lives on in 2015, the Council has failed to investigate and repair structural damage to the road, only making surface level repairs and therefore failing in its duty to maintain the highway properly and allowed further damage to nearby properties by allowing buses over the road’s weight limit to use the road.
2. Miss Y says the Council has repeatedly told residents to use their own insurance to deal with building damage, leading to repair costs of over £35,000 per property, increasing insurance premiums and a decrease in property valuations. Also, Miss Y says residents must live with vibrations in their homes causing upset and disruption to sleep and further structural damage to homes.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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 Miss Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. 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.
7. 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. It can also consider whether the Council has classified the road correctly where this is disputed.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
9. Miss Y may use this process to try to get the Council to repair the road. 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 Ms Y to be expected to use her right to go to court about this matter.
10. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway, including any works which may structurally be required. 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.
11. The law also gives the Council the right to put forward in court a defence against claims arising from a highway being ‘out of repair’ under section 58 of the Highways Act 1980. The Ombudsman has no power to remove that right by investigating a complaint about damage or injury alleged to result from fault or disrepair of the highway.
12. Also, 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 Miss Y or any others property, which Miss Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or through a claim to the Council’s own insurers. It is therefore reasonable for Miss Y to pursue a claim through either the Council’s insurer or the courts. We will not investigate this complaint.

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Final decision

14. We will not investigate Miss Y’s complaint because it is reasonable to expect Miss Y to approach the courts who are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman