Summary: We will not investigate Mr Y’s complaint about highway maintenance. This is because the court is in the best position to decide whether the Council has met its legal duty to maintain the highway.

The complaint

1. Mr Y complains the Council has decided not to carry out road and pavement resurfacing works on his street.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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How I considered this complaint

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

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My assessment

6. Mr Y said he is unable to walk down his road safely because of the trip and safety hazards caused by the uneven road and pavement surface.
7. The Council sent a Local Area Technician to inspect the road and pavement. The Council said that although there was a wearing of the surface course, no dangerous defects were noted. The Council decided not to resurface the road or the pavement and explained the policies and guidance it had followed in making its decision.
8. Section 41 of the Highways Act 1980 places a duty on highways authorities to maintain public highways. Highways authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
9. Mr Y has the right to apply to a magistrates’ court for an order to be made under section 56 of the Highways Act 1980. This order requires the authority to carry out the work needed to the highway.
10. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, Mr Y may apply to the crown court for such an order.
11. My Y may use this process to try to get the Council to repair the road. I find it is reasonable for Mr Y to do this. 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.

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Final decision

12. We will not investigate Mr Y’s complaint. This is because the court is in the best position to decide whether the Council has met its legal duty to maintain the highway.

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Investigator's decision on behalf of the Ombudsman