Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mr Y to raise the issues with the courts, who are better placed to consider the complaint, and it is not a good use of public resources to investigate complaint handling when we are not investigating the substantive matter.

The complaint

1. Mr Y complained the Council has failed to repair various road defects he reported, despite several months passing. Mr Y is also unhappy with how the Council dealt with his complaints about highway maintenance and suggests the current system is flawed and is not transparent.
2. Mr Y says this has caused him upset and anxiety.

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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. Mr Y has complained about several potholes and issues of disrepair on the roads in his area. The Council has responded to the complaints, initially setting a repair time of approximately six months, but then increasing this to 12 months when its budget what changed. Mr Y is unhappy about this and that for some of the issues he was asked to report the problem more than once using the Council’s reporting tool.
8. 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. The Council also has a reactive service for when maintenance is needed, prioritised on risk and need. The Council uses its professional expertise to determine the level of risk and need for highway maintenance and balances this with the budget it has available to prioritise maintenance.
9. 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.
10. 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.
11. Mr Y may use this process to try to get the Council to repair the potholes and maintenance issues he has raised. 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.
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.
13. Mr Y has also complained about the way his complaints were dealt with about the potholes, saying that the system is not transparent, different references are used, and the system seems unclear. We provide a free service, but must use public money carefully. This means that where we are not investigating the substantive issue of complaint, in this case the alleged poor maintenance of the highway, we will not investigate how a complaint was dealt with or responded to. We will therefore not investigate this complaint.

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Final decision

14. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to raise the issues with the courts, who are better placed to consider the complaint, and it is not a good use of public resources to investigate complaint handling when we are not investigating the substantive matter.

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Investigator's decision on behalf of the Ombudsman