Summary: We will not investigate this complaint about highway maintenance because the court is better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to properly maintain the highway outside his property, with potholes and drainage issues not being dealt with when he raises them with the Council over a period of several years. Mr Y is also unhappy with the Council’s response and on occasions lack of responses to his complaints about the issue.
2. Mr Y says he feels the issue is being ignored and the Council is wasting time jet patching and washing tarmac. He is seeking a full resurfacing of the road to stop his vehicle and others being damaged on the road which he considers to be a safety risk.

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The Ombudsman’s role and powers

3. 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)
4. 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))
5. 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

6. I considered information Mr Y 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. In this case, Mr Y says he has contacted the Council several times over several years about the condition of the highway on the road outside his home. In the Council’s complaint responses, it has explained that it regularly inspects the road network in the area both to monitor the condition of the highway and in response to reports on its online service. It explained that it prioritises repairs and maintenance and in the examples Mr Y provided in his complaint, most of the defects were below its intervention level, but it did plan to complete some work to improve the highway standard.
9. Mr Y is dissatisfied with this response and feels the planned work will not be sufficient to solve his concerns about the highway. He says the area has received patching previously, which has then not been enough to stop the problem.
10. 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. 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 or resurface it as he believes is needed. 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. As we are not investigating the substantive issue, it is not a good use of public resources to investigate how the Council did or did not response or deal with Mr Y’s complaints. We will not investigate this.

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Final decision

15. We will not investigate Mr Y’s complaint because the court is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman