Summary: We will not investigate this complaint about highway repair and maintenance. The complainant has not suffered a significant injustice because of the alleged fault, and it is reasonable to expect him to use the alternative court remedy to address his highway maintenance concerns.

The complaint

1. Mr X complains about the quality of road resurfacing carried out by Council contractors on a stretch of road that he uses regularly. He complains about the Council’s handling of his complaint, including a failure by its Highways teams to provide an update.
2. Mr X says the Council has wasted taxpayers’ money on poor maintenance works. He is concerned about possible repairs to his car from using the road.

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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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or

(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)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X has wider concerns about the misuse of taxpayers’ money to carry out poor maintenance works. He says this has caused a personal injustice affecting all taxpayers. Considering bullet point three above, we will normally only investigate a complaint where the complainant has suffered serious loss, harm or distress as a direct result of faults or failures by an organisation. In addition, we will not normally investigate a complaint where the complainant is using their enquiry as a way of raising a wider community campaign about something of general concern but where they have not suffered specific, personal injustice. On balance, I do not see that he has been caused a significant injustice by the alleged failure to maintain the highway. So, we will not investigate this part of the complaint.
8. Further, 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.
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 X may use this process to try to get the Council to repair the road. 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 X 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 the substantive, underlying issues Mr X has complained about, it would not be a good use of our resources to pursue any associated concerns about the Council’s complaint handling in isolation. So, we will not investigate this matter.

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Final decision

13. We will not investigate this complaint about highway repair and maintenance. The complainant has not suffered a significant injustice because of the alleged fault, and it is reasonable to expect him to use the alternative court remedy to address his highway maintenance concerns.

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Investigator's decision on behalf of the Ombudsman