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 the road outside her property. She says subsequent repairs by the Council to the sunken road were inadequate and failed several times. Mrs Y says her property shakes when Heavy Goods Vehicles (HGVs) drive over the defects in the road, which has damaged her property and impacted her health. She complains the Council ignored her requests for it to carry out inspections at her property to assess the damage caused by HGVs going over the poorly maintained road surface and ironworks.
2. Mrs Y complains about the Council’s complaint handling, including a failure to make reasonable adjustments.

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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, or
• there is another body better placed to consider this complaint.

(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.
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. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those on a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mrs Y to go to court and so we will not investigate.
10. It is not a proportionate use of our resources to investigate the Council’s complaint handling, including its handling of reasonable adjustments, when we are not investigating the substantive issues. Any separable injustice is not significant enough to justify our involvement. So, we will not investigate this part of the complaint.

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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