Summary: We will not investigate Mr X’s complaint that it is failing to adequately maintain a road in its area. If Mr X is unhappy with the Council’s actions, it is reasonable for him to pursue the matter in court.

The complaint

1. Mr X complains the Council is failing to adequately maintain a road in its area. He says it has failed to manage water ingress and repair potholes, causing poor driving conditions, inconvenience for local residents and an increased risk of damage to vehicles.

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The Ombudsman’s role and powers

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

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered 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 the roads in its area. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, importantly the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. Our role is to consider complaints of administrative fault. We take the view the courts are in the best position to decide whether a local highways authority is meeting its statutory duty to maintain a highway.
8. 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.
9. This order requires the highways authority to carry out the work needed to the highway. 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.
10. We will not investigate this complaint as it is reasonable for Mr X to take this matter to court. 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, if the court finds in Mr X’s favour, the court can order the Council to carry out the required work.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable for him to pursue this matter in court.

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Investigator's decision on behalf of the Ombudsman