Summary: We will not investigate Mrs B’s complaint about the Council not maintaining the road where she lives. This is because it is reasonable for Mrs B to pursue this matter at court.

The complaint

1. Mrs B complains the Council is failing to maintain the road where she lives which is covered in potholes and in a dangerous condition. Mrs B says her car has been damaged and she is concerned about future damage and that someone might get hurt. Mrs B would like the Council to pay for the repairs to her car and at the very least re-surface a section of the road.

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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)

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How I considered this complaint

4. I considered information provided by Mrs B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. 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.
7. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
8. The Council’s insurers have said it cannot investigate Mrs B’s claim for compensation because she cannot say the date when the damage happened. Mrs B may pursue her claim by taking the Council to court.
9. Or, Mrs B may follow the process set out below to try to get the Council to repair this road.
10. 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.
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. Mrs B may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs B and any other affected residents to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. This is not straightforward. Also, unlike the Ombudsman, the court can order the Council to do the required work.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman