Summary: We will not investigate Dr B’s complaint that the Council has failed to maintain the road outside his home. This is because it is reasonable for Dr B to pursue this matter at court.

The complaint

1. Dr B says his property significantly shakes every time a heavy goods vehicle passes due to the poor condition of the road outside his home. Dr B complains the Council has not visited his property to assess the problem and says it will not re-surface this section of the road at the moment. Dr B says his family is being repeatedly disturbed by the vibrations and there are cracks in the walls of his home. Rather than repairing potholes individually, which just adds to the uneven road surface, Dr B would like the Council to completely re-surface this section of the road.

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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 Act 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 Dr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But importantly, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. We generally take the view the courts are in the best position to decide disputes about whether a local highways authority has complied with its statutory duty to maintain a highway.
8. Dr B has two options.
9. If Dr B considers his property is being damaged due to the condition of the road, he may put in a claim to the Council’s insurers, either directly or via his building insurer. If needed, Dr B may pursue his claim at court.
10. Our role is to consider complaints of administrative fault. We do not normally investigate complaints about damage to property. This is because in effect such complaints are that an organisation has been negligent. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
11. Because of the complexity and seriousness of the issue Dr B complains about, I find it is reasonable and proportionate to expect him to pursue this matter at court if needed.
12. Also, if a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
13. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
14. Dr B may use this process to try to get the Council to repair the road. I find it is reasonable for Dr B and any other affected residents to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain this highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
15. So, we will not investigate this complaint.

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Final decision

16. We will not investigate Dr B’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman