Summary: We will not investigate this complaint about the Council’s failure to clear and maintain the public highway near Mrs X’s home. This is because the injustice Mrs X claims is not significant enough to warrant investigation and it would be reasonable for Mrs X to take the matter to court.

The complaint

1. Mrs X complains the Council failed to remove mud from the road and to repair damage to the grass verges and road surface despite claiming it had attended and taken necessary action. She says she had to drive through deep mud to access her property and that it was stressful communicating with the Council about the issue.

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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 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)

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How I considered this complaint

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

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My assessment

7. We do not investigate all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include the alleged injustice to the person complaining. We only investigate the most serious complaints.
8. I understand Mrs X was unhappy the Council told her it had taken action when she says it hadn’t and that it did not carry out repairs she considered were necessary, but the issue did not cause her significant enough injustice to warrant investigation.
9. Mrs X confirms the mud was cleared, albeit later than the Council claims, and although she was worried about the mud being a skid hazard her fear of what could have happened is not enough to justify our further involvement in the case.
10. If Mrs X believes the road is still out of repair and that the Council has failed to comply with its obligations to ensure it is safe for road users it would be reasonable for her to use the alternative remedy for the issue set out at Paragraph 56 of the Highways Act 1980. This allows Mrs X to serve notice on the Council and, if it fails to carry out repairs, she may apply to the court for an Order requiring it to act.
11. It is not for us to seek to interpret the requirements of the Act or to determine the Council’s compliance with it. These are matters for the courts and I have seen no good reasons to exercise our discretion to investigate further.

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Final decision

12. We will not investigate this complaint. This is because the injustice Mrs X claims is not significant enough to warrant investigation and it would be reasonable for Mrs X to serve notice on the Council for the highway disrepair issue and take it to court.

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Investigator's decision on behalf of the Ombudsman