Summary: We will not investigate Mr B’s complaint that the Council is failing to maintain a local road. This is because it is reasonable for Mr B to pursue this matter at court.

The complaint

1. Mr B complains the Council is failing to maintain a road which is in a hazardous condition. Mr B says this has caused damage to his vehicle, and people are at risk in wet or icy conditions.

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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 Act 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 Mr B.
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 adopted streets. 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. A complaint about vehicle damage is best made to the Council’s insurers. If needed, such a claim can be pursued at court. Only the courts can decide if an organisation has been negligent and so should pay damages.
9. Also, 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.
10. 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.
11. Mr B may use this process to try to get the Council to repair the road. I find it is reasonable for Mr B to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. This is not straightforward. Also, unlike the Ombudsman, the court can order the Council to do the required work.
12. So, we will not investigate this complaint.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman