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.

The complaint

1. Mr Y complained the Council has failed to repair potholes on the highway in his area and not kept to the time requirements within its policy for such repairs.
2. Mr Y says he has both had accidents, causing him mild injuries and damage to his property, due to potholes not being repaired despite reports.

Back to top

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 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))

Back to top

How I considered this complaint

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

Back to top

My assessment

6. 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.
7. In this case the Council has considered the reports made by Mr Y and measured the defects. It has explained that where defects met the thresholds for work, work has been completed and one road has been considered for its patching programme for the future. It has also explained why it is unable at this stage to provide a date for the patching works and how this is dependent on permits for access and other priorities across its road network. As the Council has carried out work to consider the reports and has explained why it has or has not in different cases taken action, there is not enough evidence of fault to justify investigation into this complaint.
8. Further, if a person considers that a highways authority has failed to maintain a highway it is responsible for, the person 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. Mr Y may use this process to try to get the Council to repair the roads where he is aware of potholes that he believes need repair. 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.
10. 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.
11. Further, the legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury, which Mr Y says he has sustained after falling over a pothole. These are legal claims which may only be determined by insurers or the courts. We cannot decide liability or award damages. Such matters are more appropriately dealt with by the courts. We will not investigate this complaint.
12. The law also gives the Council the right to put forward in court a defence against claims arising from a highway being ‘out of repair’. The Ombudsman has no power to remove that right by investigating a complaint about damage or injury alleged to result from fault or disrepair of the highway. We will therefore 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.

Back to top

Investigator's decision on behalf of the Ombudsman