Summary: We will not exercise discretion to investigate this complaint about the Council’s failure to take action over highway defects. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr X could not have complained to us sooner.

The complaint

1. Mr X complained about the Council failing to record his reports of highway defects from 2023 onwards. He says the Council has a duty to maintain the highway but following his report of defects his complaints revealed that there was no record of the defects being listed from works schemes

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

4. I considered information provided by the complainant and the Council’s responses.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X reported problems with a surface defect in the road near his home which was causing noise and vibration. The Council inspected the site in January 2024 and advised that there was no actional defect noted. It also said the location would be placed on a rolling programme of carriageway works for consideration. Mr X says that his subsequent enquiries and information requests indicate that the defect was not added to a list.
7. Mr X says the Council failed to carry out its s.41 duty to maintain the public highway, its s.58 duty to maintain systems for inspection and keep proper records and that his subsequent information access requests were not properly addressed.
8. We will not investigate this complaint which was received outside the normal 12-month period. Mr X was aware of the defects he reported in 2024 and if he was dissatisfied with the Council’s responses he could have complained to us earlier. I have seen no evidence to suggest that Mr X could not have complained to us sooner.
9. The time for receiving complaints is from when someone became aware of the matter they wished to complain about, not when they complained to the Council or it issued its final response. We would expect someone to complain to us within a year, even if they were dissatisfied with the time the complaints procedure was taking.
10. We will not investigate his complaint about the Council’s handling of his freedom of information requests. The Office of the Information Commissioner is the body which investigates these matters and the Council provided contact details for this body to Mr X in 2025.
11. The Council has also given previous advice to Mr X about making a claim for alleged damage to his property caused by vibration from the defect. These matters are dealt with by insurers and the courts and would not be within our jurisdiction if he submitted a claim now. S.58 of the highways Act 1980 is solely concerned with council defences against such legal claims with regard to inspection and records.

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Final decision

12. We will not exercise discretion to investigate this complaint about the Council’s failure to take action over highway defects. This complaint was received outside the normal 12-month period for investigating complaints. There is no evidence to suggest that Mr X could not have complained to us sooner.

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Investigator's decision on behalf of the Ombudsman