Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for Mr X to serve notice on the Council and go to court.

The complaint

1. Mr X complains the Council has failed to carry out repairs to the public highway, leaving the road in a dangerous state. He says he is worried the road will damage wheels and tyres and cause collisions between vehicles.

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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 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

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

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My assessment

6. 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.  Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not.  It is therefore open to interpretation.
7. We cannot interpret the law to say the Council has failed to fulfil its duty but Section 56 of the Highways Act 1980 provides an alternative remedy for this issue.  Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs.  Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above. 

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Final decision

8. We will not investigate this complaint because it is reasonable for Mr X to serve notice on the Council and go to court.

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Investigator's decision on behalf of the Ombudsman