Summary: We will not investigate this complaint about the state of the public highway. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. Mr X complains the Council has failed to keep the roads in his area properly maintained and clear of mud. He says the Council’s temporary repairs waste money and do not provide a permanent solution.
2. Mr X says the issues have caused damage to his cars and the mud on the road could lead to an accident.

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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 cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

7. The Council’s obligations in respect of road maintenance and mud on the road are set out in the Highways Act 1980. Section 41 details the Council’s duty to maintain public highways and Section 150 deals with obstructions caused by things such as soil. The Highways Act 1980 also provides mechanisms for considering and resolving complaints about the state of the public highway.
8. If Mr X believes the Council has failed to comply with its duty to properly maintain the public highway he may serve notice on the Council under Section 56 and, if the Council fails to take action, he may apply to the court for an order requiring it to carry out repairs.
9. If Mr X believes the Council has failed to clear mud from the highway which is causing an obstruction he may complain to the court directly under Section 150(2).
10. The courts can also consider any claim for damage to Mr X’s vehicle, allowing the Council to exercise the special defence provided by Section 58 of the Act if appropriate.
11. I have seen nothing to suggest it would unreasonable to expect Mr X to use these processes and I will not therefore exercise our discretion to investigate the matter further.
12. While Mr X believes the Council’s failed temporary repairs has resulted in a waste of public money the law does not allow us to investigate such matters. This is because the use of public funds is an issue which affects ‘all or most’ of the people in the Council’s area. It is therefore excluded from investigation as set out at Paragraph 6 above.

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Final decision

13. We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman