Summary: We will not investigate this complaint about subsidence to his road. This is because the Council says it has carried out the repairs necessary and if Mr X is not satisfied with its actions it would be reasonable for him to take the matter to court.

The complaint

1. Mr X complains the Council failed to carry out repairs to his road, which was suffering from subsidence. He says the road is sinking and he wants the Council to repair it to its original level.

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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. 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.
8. The Council says it has now completed repairs to the road and this provides a suitable remedy for the complaint. It is therefore unlikely we could achieve anything more for Mr X by investigating further.
9. In the event Mr X is not satisfied with the Council’s actions and believes the road remains out of repair he may use the mechanism provided by Section 56 of the Highways Act. This allows a member of the public firstly to serve notice on the authority and then to apply to the court for an order requiring it to carry out repairs.
10. We usually consider it reasonable for a person to use this process and I have seen no good reasons why Mr X could not use it in this case.

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Final decision

11. We will not investigate this complaint. This is because the Council has taken action to remedy the issue at the heart of the complaint and it is therefore unlikely we could achieve anything more for him. If Mr X is not satisfied with the Council’s actions it would be reasonable for him to take the matter to court.

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Investigator's decision on behalf of the Ombudsman