Summary: We will not investigate Mr X’s complaint about the Council not maintaining the road where he lives. This is because there is not enough evidence of fault to justify investigating and it is reasonable for Mr X to pursue this matter at court.

The complaint

1. Mr X says, over the past two years, he has been complaining to the Council’s contractor about its failure to sufficiently repair part of a road. He says the Council’s contractor told him it would repair the road in July 2025, but it failed to do so. He complains the contractor told him on three occasions that it would investigate and respond to him, but it has not done so. Mr X says he has complained about highway maintenance issues with other nearby roads, but the contractor has failed to carry out repair works.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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 and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation. We generally take the view the courts are in the best position to decide whether a council has complied with this duty.
8. Mr X has complained about the lack of road maintenance in his area, in particular delays by its contractor to repair a pothole on a nearby road. However, the Council’s contractor explained to Mr X in its correspondence with him how it has considered the reports he has made, the timeframe within which it completed the repairs for the original pothole and, where a further inspection has identified additional repairs are needed, how it has decided to prioritise the works. The Council uses its professional expertise to determine the level of risk and need for highway maintenance.
9. In this case, the Council’s contractor has considered the issues raised, carried out inspections and referred to its policy. It is entitled to make a judgement on where to prioritise its resources based on its professional assessment. As it has done this, we will not investigate this complaint as there is not enough evidence of fault to justify use of public resources to do so.
10. If Mr X considers the Council has failed to maintain a highway it is responsible for, and wishes to pursue the matter, he 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.
11. 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.
12. Mr X may use this process to try to get the Council to repair the roads that he is concerned about. 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 on 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.
13. 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.
14. So, we will not investigate this complaint.
15. It is not proportionate for us to consider Mr X’s complaint about the Council’s repair report or complaint handling alone when we are not investigating the substantive part of the complaint.

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Final decision

16. We will not investigate Mr X’s complaint about the Council not maintaining the road where he lives. This is because it is reasonable for Mr X to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman