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

The complaint

1. Mr and Mrs X complain the Council has failed to properly maintain the highway which contributed to a car accident. They also complain about the Council’s complaint handling.

Back to top

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)

Back to top

How I considered this complaint

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

Back to top

My assessment

6. Mr and Mrs X complain the Council has failed to properly maintain the highway.
7. If a person considers that a highways authority has failed to maintain a highway it is reasonable for the person affected to apply to 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.
8. Mr and Mrs X may use this process to try to get the Council to maintain the road. I find it is reasonable for them 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.
9. Mr and Mrs X complain poor maintenance of the highway contributed to a car accident. Complaints about personal injury or damage to property are a matter for the courts to decide. Only a court can decide whether the authority should have dealt with the problem before it caused the complainant harm.
10. Mr X complains the Council has handled his complaint poorly and taken too long to respond to him. We will not investigate this part of the complaint because it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issues.

Back to top

Final decision

11. We will not investigate Mr and Mrs X’s complaint about the Councils maintenance of the highway. The courts are better placed to consider the matter.

Back to top

Investigator's decision on behalf of the Ombudsman