Summary: We will not investigate Mrs X’s complaint about highway maintenance. The courts are better placed to consider the matter.

The complaint

1. Mrs X complains the Council have not fixed a leak on a public highway it is responsible for.

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The Ombudsman’s role and powers

2. 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)
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 injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X asked the Council to fix a leak on a public highway. She explained the leak was causing the road surface to deteriorate making it unsafe for vehicles and pedestrians.
6. The Council said the issue was previously passed to the water company and it is awaiting updated information while keeping a provisional works scheme in place. They explained the lane is low‑priority, so permanent works are unlikely soon, but they will monitor the site and repair any safety‑critical defects.
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.
8. If a person considers 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. It would be reasonable for Mrs X to use this process to try to get the Council to repair the road. 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

11. We will not investigate Mrs X’s complaint because the courts are better placed to consider the matter.

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Investigator's decision on behalf of the Ombudsman