Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of a road because it is reasonable for him to take the matter to court.

The complaint

1. Mr X lives on a road with a sunken area which floods, and with potholes. He complains the Council has failed to repair defects on the road identified by its officers and is not intending to fix them soon enough.
2. Mr X says the road’s condition causes difficulties for him, his neighbours and others when using it. He considers the highway’s disrepair has also caused damage to his vehicle.

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The Ombudsman’s role and powers

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 from Mr X and the Council, online maps and the Ombudsman’s Assessment Code.

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My assessment

5. Under Section 56 of the Highways Act 1980, Mr X has the right to apply to a Magistrates’ court for a repair order requiring the Council to take whatever action is needed to bring the highway up to standard.
6. We cannot decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair its highway. Only the courts can make these decisions on highway condition and legal liability for property damage. The law also gives the Council the right to defend in court any claims against it of disrepair to its highways. We would not disregard or go behind that right by investigating those claims. It is therefore reasonable for Mr X to go to court, and we will not investigate.

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Final decision

7. We will not investigate this complaint because it is reasonable for Mr X to take the highways matters complained of to court.

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Investigator's decision on behalf of the Ombudsman