Summary: We will not investigate this complaint about highway maintenance, particularly blocked gullies. The complainant has not suffered a significant injustice as a result of the alleged fault, and it is reasonable to expect him to use the alternative court remedy to address his highway maintenance concerns.

The complaint

1. Mr X complains the Council’s contractors are not adhering to the frequency in their policy for cleansing blocked highway gullies. He also complains the Council is failing to prioritise reported defects correctly, or take appropriate action.
2. Mr X says the Council then failed to adequately respond to his complaint about these matters.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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))

5. With regard to the two bullet points above, 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 by an organisation. In addition, we will not normally investigate a complaint where the complainant is using their enquiry as a way of raising a wider community campaign about something of general concern but where they have not suffered specific, personal injustice.
6. 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)
7. 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.

Back to top

How I considered this complaint

8. I considered information provided by Mr X and the Council about the complaint process.
9. I also considered the Ombudsman’s Assessment Code.

Back to top

My assessment

10. I appreciate why Mr X why has wider concerns about blocked gullies, standing water, and other road defects in his local area, following the death of a relative in a road incident.
11. But on balance, and with reference to paragraphs 4 and 5 above, I do not see that he has been caused a significant injustice by the alleged failure to adhere to the gully cleansing policy. So, we will not investigate this part of the complaint.
12. Furthermore, the local highways authority has a statutory duty to maintain adopted streets. They are 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.
13. 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.
14. 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.
15. Mr X may use this process to try to get the Council to repair the drainage/defects on the roads he refers to. 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 this part of the complaint either.
16. As we are not investigating the substantive, underlying issues Mr X has complained about, it would not be a good use of our resources to pursue any associated concerns about the Council’s complaint handling in isolation.

Back to top

Final decision

17. We will not investigate Mr X’s complaint primarily because he has not suffered a significant injustice as a result of the alleged fault in the gully cleansing regime, and it is reasonable to expect him to use the alternative court remedy to address highway maintenance issues.

Back to top

Investigator's decision on behalf of the Ombudsman