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

The complaint

1. Mr Y complained the Council refused his claim for damage to his vehicle and produced evidence of the road condition after it had been repaired. He is also generally unhappy with the maintenance of the highway across the area.
2. Mr Y says this has caused him difficulty in making his claim, causing him distress and inconvenience.

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The Ombudsman’s role and powers

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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. 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.
7. Consequently, any claim for damages, such as costs for repairs to his vehicle or a replacement tyre, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. While the Council may not have accepted Mr Y’s claim, it is now for Mr Y to decide whether or not to pursue the claim through the courts. We will not investigate this complaint.
8. Mr Y is also unhappy with the maintenance of the highway, where he says there have been several potholes, especially in the area where he says the damage to his vehicle took place.
9. The Council as a local highways authority has a statutory duty to reasonably maintain and repair the highway so it is free of danger to all users using the highway in a way normally to be expected. This means 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.
10. Mr Y strongly feels the service is insufficient. 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.
11. Mr 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.
12. Further, 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, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

13. We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman