Summary: We will not investigate this complaint about the Council’s failure to complete repairs to his road. This is because it is reasonable for Mr X to go to court.

The complaint

1. Mr X complains the Council failed to repair all noted defects in the road despite closing the road for several days. He says this has caused damage to vehicles and put him to time, trouble and stress to report the issues and chase repairs.

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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 the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways.  Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
7. While Mr X says the Council has missed defects in the highway when carrying out previous repairs, the Council says it has repaired any defects which it felt met the relevant threshold. Councils are entitled to prioritise the most serious defects and 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 Mr X to go to court and so I will not investigate.

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Final decision

8. We will not investigate this complaint because it is reasonable for Mr X to go to court.

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Investigator's decision on behalf of the Ombudsman