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

The complaint

1. Mrs X complains the Council have failed to maintain a road which it is responsible for.

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

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My assessment

5. 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.
6. 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.
7. 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.
8. Mrs X may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs 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.

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Final decision

9. We will not investigate this complaint. This is because it would be reasonable for Mrs X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman