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

The complaint

1. Mr X complains the Council have failed to maintain a road it is responsible for. He also complains they have failed to repair a road sign they are responsible for.

Back to top

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)
3. 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 any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

5. Mr X advised the council of a pothole on a road they are responsible for. The Council agreed to arrange for a survey of the location and raise any necessary repair works in accordance with their maintenance prioritisation policy.
6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
7. If a person considers 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.
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. Mr X may use this process to try to get the Council to repair the road. I find it is reasonable for Mr X to do this. 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.
10. Mr X also reported a damaged road sign to the Council. They advised they would facilitate any necessary repairs. I recognise Mr X is unhappy at the Council’s response, but we will not investigate as the outstanding injustice caused is not significant enough to justify our involvement.

Back to top

Final decision

11. We will not investigate Mr X’s complaint. This is because it would be reasonable for him to take the matter to court and the outstanding injustice caused to him is not significant enough to justify an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman