Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for the complainant to go to court.

The complaint

1. Mrs Y complains the Council failed to maintain and adequately repair the kerb line and carriageway outside her property. She says the Council did not investigate the issue fully and its repairs made the problem worse. Also, Mrs Y complains, in its complaint response, the Council used incorrect terminology and did not know which area was “public highway” or “private land”.
2. Mrs Y says, because of the highway disrepair, her driveway is constantly covered in mud and pools of water, which she has to brush out onto the road when it rains. She says this creates cost implications for her as she will have to pay for the cleaning of her driveway and car. She wants the Council to relay the highway and fix the issue.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs Y has the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring a highway up to standard.
9. Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mrs Y to go to court and so I will not investigate.
10. It is not a proportionate use of our resources to investigate the Council’s complaint handling alone when we are not investigating the substantive issues. Any separable injustice is not significant enough to justify our further involvement. So, I will not investigate this matter.

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Final decision

11. We will not investigate this complaint because it is reasonable for the complainant to go to court.

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Investigator's decision on behalf of the Ombudsman