Summary: We will not investigate this complaint about the Council’s failure to properly maintain the public highway. This is because it is reasonable for Mr X to take the matter to court.

The complaint

1. Mr X complains the Council failed to properly maintain a road. He says this caused damage to his wife’s car. He wants the Council to carry out repairs to the road, change its policy and reimburse the costs of repairing his wife’s car.

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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 Act 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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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My assessment

7. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. The Council is the highway authority in this case.
8. Mr X complains the Council has failed to properly maintain roads in its area over several years. He reported damage to his wife’s car from hitting a pothole in 2022 and made a claim to the Council for the cost of repairs, but the Council refused his claim.
9. Mr X remains unhappy with this decision and says the Council’s repairs, carried out after the accident, have not been effective and that the road is now in the same state of disrepair as it was in 2022.
10. Had Mr X wished to pursue a claim for damage to the car it would have been reasonable for him to do so by taking the Council to court at the time. We cannot decide whether the Council is liable for the damage Mr X complains about and have no powers to enforce an award of damages. Any complaint about this issue is in any event several years outside our 12-month time limit for investigation and I have seen nothing to show it would not have been reasonable for Mr X to raise the issue sooner.
11. While Mr X complains generally about the Council’s policy for repairing damage to the highway it is not for us to decide whether the policy is correct. This requires interpretation of the law to decide whether the policy fulfils the Council’s obligations under Section 41 of the Highways Act.
12. Should Mr X wish to pursue the matter it would be reasonable for him to serve notice on the Council under Section 56 of the Act and apply to the court for an order requiring repairs. The court can then consider whether the actions taken by the Council, in accordance with its policy, comply with its obligations under Section 41.

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Final decision

13. We will not investigate Mr X’s complaint because it is reasonable for him to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman