Summary: We will not investigate Mr B’s complaint about the Council’s handling of his concerns about the condition of the highway where he lives. This is because it is reasonable for Mr B to apply to court for an order requiring the Council to repair this highway.

The complaint

1. Mr B says the Council is failing to maintain the road and pavement where he lives. Mr B complains the Council has not provided a transparent and evidence-based explanation for its decision not to re-surface this highway. Mr B also says the Council closed his complaint without answering his specific questions.

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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 Mr 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. 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.
9. This order requires the highways authority to carry out the work needed to the highway. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the crown court for such an order.
10. Mr B and any other affected residents may use this process to try to get the Council to re-surface this highway. I find it is reasonable for Mr B to do this. The court is in the best position to consider the issues in detail, including how the Council has justified its decision-making, and ultimately 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.
11. So, we will not investigate Mr B’s complaint about the Council’s maintenance of this highway or how it has explained its decision-making.
12. Because we are not investigating the substantive matter complained about, an investigation solely into the Council’s handling of Mr B’s complaint would not be a good use of our limited resources.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to apply to court for an order requiring the Council to repair this highway.

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Investigator's decision on behalf of the Ombudsman