Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating, there is another body better placed to consider this complaint, and it is reasonable to expect Mr Y to approach the court about the matter.

The complaint

1. Mr Y complained the Council has failed to properly maintain the highway on the road he lives on, which Mr Y says his causes his property to vibrate. He says the Council has assessed various potholes but has failed to deal with the issues, saying that the problems are not bad enough and has failed to provide information on how it measures the vibrations cause.
2. Mr Y says the vibration of his property has been caused by vehicles driving over the road defects and feels let down by the Council, despite paying council tax.

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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 not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

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

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My assessment

7. 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, 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.
8. Mr Y has complained about the lack of road maintenance in his area, in particular where the Council has assessed parts of the highway surface such as potholes or defects but has decided that these issues do not meet their intervention levels or are not considered a priority. However, the Council has explained to Mr Y in its correspondence with him how it has considered the reports he has made, its intention to prioritise where repairs are needed and how it will continue to monitor the highway. The Council uses its professional expertise to determine the level of risk and need for highway maintenance.
9. Mr Y strongly feels the service is insufficient and feels the policy and process the Council has set out is not good enough. However, we consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. In this case, the Council has considered the issues raised, carried out inspections and referred to its policy and it is entitled to make a judgement on where to prioritise its resources based on its professional assessment. As it has done this, we will not investigate this complaint as there is insufficient evidence of fault to justify use of public resources to do so.
10. If Mr Y considers the Council has failed to maintain a highway it is responsible for, and wishes to pursue the matter, he 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. 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.
12. 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 Mr Y to be expected to use his right to go to court about this matter.
13. 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.
14. Mr Y has also complained that his property vibrates due to the potholes on the road and the Council has failed to tell him how it monitors such vibrations. Under the Environmental Protection Act 1990, Council do not owe a duty to investigate noise or vibration from traffic. Its duty, as a highways authority, is to reasonably maintain the highways so it is free of danger to all uses who use the highway in the way normally expected of them. Consequently, the Council is not required to monitor or stop Mr Y’s property from vibrating due to traffic. It is only required to maintain the highway, which in this case it has done. As there is not enough evidence of fault to justify investigating, we will not investigate.

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Final decision

15. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating, there is another body better placed to consider this complaint, and it is reasonable to expect Mr Y to approach the court about the matter.

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Investigator's decision on behalf of the Ombudsman