Summary: We will not investigate this complaint about disrepair to a public highway. This is because X has an alternative legal remedy through the courts. And because only the court can order the Council to make a repair, and we have no power to do so to resolve his concern, it would be reasonable to expect X to use this alternative remedy.

The complaint

1. X complained about the poor repair of several roads near him, including overgrown hedges and other poor surfaces. X said they have already had an accident and is now anxious about using the roads.

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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. 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, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
4. Where 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.

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How I considered this complaint

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

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Final decision

6. We will not investigate X’s complaint because they have an alternative legal remedy available through the courts and it would be reasonable to use their alternative remedy to achieve their outcome.

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Investigator's decision on behalf of the Ombudsman