Summary: We will not investigate this complaint about the Council’s failure to comply with its obligations under the Highways Act 1980. This is because it would be reasonable for Mr X to serve notice on the Council under S56 of the Act and take the matter to court.

The complaint

1. Mr X complains the Council has failed to keep a list of streets within its area which are highways maintainable at the public expense, as required under S36(6) of the Highways Act 1980. He says that as a result there are large potholes on a road which should be a publicly maintainable highway but which have not been repaired.

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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 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. 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 Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. While Mr X’s complaint focuses on the Council’s alleged failure to comply with S36(6) of the Highways Act 1980 as set out above, the injustice he claims relates to the Council’s alleged failure to meet its duty to maintain what he believes is part of the public highway under S41(1). Mr X claims no separate injustice from the alleged failure to keep a list of streets.
8. The issue therefore comes down to whether the road Mr X refers to is or should be part of the public highway and whether the duty to maintain it under S41(1) applies.
9. It is not for us to determine the extent of the public highway or to decide whether the Council has complied with its obligations under the Highways Act.
10. If Mr X wishes to pursue the matter it would be reasonable for him to serve notice on the Council under S56 of the Highways Act, alleging the road is part of the public highway and out of repair, and apply to the court to rule on the issue.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman