Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mr Y to approach the courts about the matter who are better placed to consider the complaint and it is not a good use of public funds to investigate how the Council dealt with Mr Y’s complaints.

The complaint

1. Mr Y complained the Council’s repairs to the road network in his area have been of poor quality and in some areas incomplete. Mr Y is also unhappy with the Council’s responses to his complaints about the road maintenance issues.
2. Mr Y says this has led to debris being left at the sides of roads in the area, causing a visual impact, potentially leading to blocked drains and in Mr Y’s view wasting public money.

Back to top

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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
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.

Back to top

How I considered this complaint

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

Back to top

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. If a person considers that a highways authority has failed to maintain a highway it is responsible for, including that repairs already carried out are insufficient or of too poor quality, 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.
9. 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.
10. Mr Y may use this process to try to get the Council to repair various roads in his area. 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.
11. 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.
12. As we are not investigating this substantive issue, it is not a good use of public resource to investigate how the Council dealt with or responded to Mr Y’s complaint. We will not investigate.

Back to top

Final decision

13. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to approach the courts about the matter who are better placed to consider the complaint and it is not a good use of public funds to investigate how the Council dealt with Mr Y’s complaints.

Back to top

Investigator's decision on behalf of the Ombudsman