Summary: We will not investigate Mrs X’s complaint about the Council’s failure to carry out repairs to the public highway in 2023/24. This is because the complaint is late and there are no good reasons to exercise our discretion to investigate it now. We will not investigate the alleged ongoing failure to repair the highway because it would be reasonable for Mrs X to take the matter to court.

The complaint

1. Mrs X complains the Council missed opportunities in 2023 and 2024 to repair the public highway before serious structural issues forced its closure. She also complains the Council has still not carried out repairs to the road more than two years later.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. 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. Mrs X believes the Council has failed to comply with the Act by failing to ensure the highway is safe and navigable.
9. We will not investigate Mrs X’s complaint about the Council’s lack of action to repair the road following her reports in 2023 and 2024. This is because the complaint is late and it would have been reasonable for Mrs X to complain about the matter sooner.
10. While Mrs X’s complaint about the ongoing failure to repair the road is in-time, we will not investigate this issue either. This is because the process is complicated by an underlying legal dispute and it is not for us to tell the Council what it must do about it.
11. If Mrs X wishes to pursue the issue it would be reasonable for her to use the alternative remedy provided at Section 56 of the Highways Act 1980. This allows Mrs X to serve notice on the Council and apply to the court for an Order requiring it to carry out repairs. It would then be for the courts to determine whether the Council has complied with its obligations and to set any conditions for the repair and reopening of the road which it sees fit.

Back to top

Final decision

12. We will not investigate this complaint. This is because it would be reasonable for Mrs X to apply to serve notice on the Council and take the matter to court.

Back to top

Investigator's decision on behalf of the Ombudsman