Summary: We will not investigate Mr B’s complaint that the Council has not fully repaired a road defect he reported. This is because it is reasonable for Mr B to apply to court for an order requiring the Council to repair this section of road.

The complaint

1. Mr B complains the Council has not fully repaired a road defect he reported. Mr B says the poor condition of this road affects him because he uses it several times a day. Mr B says temporary repairs should still be completed to an acceptable standard and he would like the Council to make sure the affected section of road is left level with the surrounding surface.

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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 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)

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How I considered this complaint

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

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My assessment

6. The Council says it is satisfied the repair that has been undertaken is sufficient to make this area safe for the public to use. The Council says the area will be reviewed to consider potential further action and in the meantime the Council will undertake a six monthly driven inspection.
7. 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.
8. We generally take the view the courts are in the best position to decide whether a local highways authority has complied with this maintenance duty.
9. 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.
10. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
11. Mr B may use this process to try to get the Council to undertake further repairs to this section of road. I find it is reasonable for Mr B to do this. Mr B may seek legal advice about taking such action and he may also be able to get help from other residents who are affected.
12. The court is in the best position to decide whether the Council has met its legal duty to maintain this highway. 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 Mr B’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman