Summary: We will not investigate Ms X’s complaint about the Council delaying in repairing highway defects outside her property. It was reasonable for Ms X to take any claim of highway maintenance failure to the Magistrates’ court. There is not enough evidence of Council fault to warrant us investigating and an investigation would not lead to a different outcome. It would be reasonable for Ms X to make any claim of property damage to the Council’s insurers and, if necessary, to the courts.

The complaint

1. Ms X lives on a Council-owned road. She complains the Council:
1. failed to fix two defects on the road directly outside her property;
2. repeatedly told her for a year it would fix the defects but then did not.
2. Ms X says the noise and vibration from vehicles travelling over the highway defects means she had to put up extra curtains to try and block noise, use ear plugs at night to help with sleep, and avoid using the bedroom closest to the road. She says noise and vibration has caused stress over a long period of time. Ms X says she has had to regularly chase the Council about the matter and has been caused disappointment and frustration when the repairs did not happen. She says she is worried about the integrity of her property because of the vibrations.

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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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• further investigation would not lead to a different outcome.

(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 from Ms X and the Council, and the Ombudsman’s Assessment Code.

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My assessment

7. We recognise Ms X wanted the highways repairs done sooner and lived with the impacts for several months. But Ms X could have pursued a resolution to the core highways disrepair matter at court. Under Section 56 of the Highways Act 1980, Ms X had the right to apply to a Magistrates’ court for a repair order requiring the Council to take whatever action was needed to bring the highway up to standard.
8. We cannot decide whether the Council has maintained the highway properly. Only the courts can make these decisions on highway condition. 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 would have been reasonable for Ms X to have gone to court to seek a resolution to the highway repairs issue.
9. Even if we investigated, it is unlikely we would have found fault by the Council regarding the time it took to do the repairs. In response to Ms X’s concerns about the highway, the Council visited and assessed the site. Officers determined the disrepair was not sufficiently serious for them to give it priority. Within the context of the repair issues in their whole area, officers decided damage at other sites posed more risk to road users. That was a decision they were entitled to make. The Council advised Ms X that they would place the works outside her house on its waiting list and would do them when times and resources allowed. Officers explained this was a discretionary decision and if other more significant highways risks arose, the work on Ms X’s road would be put back. This happened several times before Ms X’s road was recently fixed.
10. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process. Officers used their professional judgement and experience here and decided the disrepair in Ms X’s road did not warrant them prioritising the work. Despite this, they made a discretionary decision to do the works if schedules for other greater priority work allowed. Councils can make decisions on how best to target their highways resources across their area. We recognise Mr X disagrees with the Council’s decision not to give greater priority to the works on her road. But it is not fault for a council to properly make a decision with which someone disagrees.
11. We further note the Council has now done the highway repairs Ms X wanted. This means there is no different outcome on the core issue which an investigation would now achieve for her.
12. Ms X says she is worried about damage to her property from vibrations caused by vehicles driving over the highway defects. Any such damage which has been caused or may become apparent in future would amount to a legal claim that the Council is liable for property damage. We cannot make decisions on questions of legal liability for damaged property. It would be reasonable for Ms X to make any claim of property damage to the Council’s insurers and, if necessary, to the courts, because only those bodies can make those legal liability decisions. Ms X may wish to seek independent legal advice to take this route.

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Final decision

13. We will not investigate Ms X’s complaint because:
• it was reasonable for her to have taken her claim of maintenance failure to the Magistrates’ court; and
• there is not enough evidence of Council fault to warrant us investigating; and
• it would be reasonable for her to make any claim of property damage to the Council’s insurers and, if necessary, to the courts.

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Investigator's decision on behalf of the Ombudsman