Summary: We will not investigate Miss B’s complaint that the Council is failing to maintain the road where she lives. This is because it is reasonable for Miss B to apply to court for an order requiring the Council to repair the road.

The complaint

1. Miss B complains the road where she lives is in a poor condition and is getting worse. Miss B says there is now a ditch outside her home which could be damaging her vehicle. Miss B says the Council has failed to properly investigate or put right this issue, despite planning to re-surface the road ten years ago, and has not provided her with updates despite saying it would do this.

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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 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)

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How I considered this complaint

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

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My assessment

6. 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. We generally take the view the courts are in the best position to decide whether a local highways authority has complied with this duty.
7. 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.
8. 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.
9. I find it is reasonable for Miss B and other affected residents to use this process. 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.
10. So, we will not investigate this complaint.

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Final decision

11. We will not investigate Miss B’s complaint because it is reasonable for her to apply to court for an order requiring the Council to repair this road.

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Investigator's decision on behalf of the Ombudsman