Summary: We will not investigate this complaint about the Council failing to repair a defective manhole cover. There is not enough evidence of fault in the way the Council has assessed the matter, we cannot achieve the outcome the complainant is seeking, and it is reasonable to expect him to pursue a court remedy.

The complaint

1. Mr X complains the Council has failed to act to stop the noise caused by a rocking manhole cover in the road outside his home. He says the noise is a nuisance during the day and often wakes him up at night. Mr X would like the manhole cover replaced.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

3. With regard to the first bullet point above, we can 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)
4. 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)

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How I considered this complaint

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

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My assessment

6. I appreciate Mr X is frustrated and impacted by the noise coming from the rocking manhole cover.
7. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
8. Here, the Council inspected the manhole cover but says no safety issues were identified, so no further action was taken at that time. The Council was entitled to reach its own professional judgement on the matter, and an investigation by the Ombudsman could not overrule that decision. As such, the Ombudsman will not start an investigation because there is not enough evidence of fault in the way the Council has reached its decision that repair works are not required, and the Ombudsman’s continued involvement would not achieve a different outcome.
9. Furthermore, the Ombudsman would normally take the view that the courts are in the best position to decide whether a highways authority has met its statutory duty to maintain a highway. In that regard, a person can apply to the courts for an order to be made under section 56 of the Highways Act 1980, requiring the highway authority to carry out works. I consider it reasonable to expect Mr X to use this alternative remedy because the courts are 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, with reference to paragraph 4 above, the Ombudsman will not investigate the complaint for this reason too.

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Final decision

10. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council reached its decision on the matter, we cannot achieve the outcome he is seeking, and it is reasonable to expect him to use the available court remedy.

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Investigator's decision on behalf of the Ombudsman