Summary: We will not investigate this complaint about the Council failing to resolve highway disrepair issues, failing to reply to an email, and failing to respond to the complainant’s Stage 2 complaint. It is reasonable to expect the complainant to use the alternative court remedy which is available, and he has not been caused a significant injustice by the Council’s failure to respond to an email.

The complaint

1. Mr X complains the Council has failed to resolve several highway disrepair issues near where he lives, particularly uneven pavement surfaces. He also complains the Council failed to respond to a December 2024 email, where he enquired about amending a spelling mistake he made when reporting a highway disrepair issue.

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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. We can 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. So, we do not start an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. With regard to the two bullet points above, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
5. The law also 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)
6. And, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I considered information provided by Mr X, and the Ombudsman’s Assessment Code.

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My assessment

8. 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.
9. Although the Council’s duty to maintain public highways is set out in law, the level of maintenance, frequency of inspections, and threshold for repairs is not. It is therefore open to interpretation.
10. We cannot interpret the law to decide if the Council has fulfilled its obligations under Section 41 the Highways Act 1980. However, the Act provides a mechanism for Mr X to raise the matter with the court and seek a view on whether the Council has done enough. This is set out at Section 56 of the Act.
11. If Mr X believes the Council has failed to properly maintain the highway, he may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation and, unlike the Ombudsman, it has the power to order the Council to take action. So, with reference to paragraph 5 above, if Mr X wishes to pursue this matter it would be reasonable for him to follow the court process outlined above. The Ombudsman will not investigate this part of the complaint.
12. And, whilst Mr X may have felt frustrated by the Council failing to respond to his December 2024 email, I am not persuaded this caused him a significant injustice. So, we will not investigate this aspect of the complaint either.
13. Finally, it would not be a good use of our resources to investigate any failings in the Council’s subsequent complaint process, when we are not pursuing Mr X’s substantive concerns about the highway disrepair matters or the lack of response to his December 2024 email.

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Final decision

14. We will not investigate Mr X’s complaint primarily because it is reasonable to expect him to use the alternative court remedy which is available to address any highway disrepair issues, and he has not been caused a significant injustice by the Council’s failure to reply to his December 2024 email.

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Investigator's decision on behalf of the Ombudsman