Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for the complainant to go to court.

The complaint

1. Mr X complains the Council failed to carry out two separate repairs to the public highway. He says one defect has been present since late 2024 and the other risks damaging his property. He also complains about the Council’s website, which he says makes it difficult to locate and submit complaints, and is unhappy with the Council’s handling of his complaint about the matter.

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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 the complainant 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. It is not for us to decide if the Council has met its duty. If Mr X believes the Council has failed to properly maintain the public highway it would be reasonable for him to serve notice on the Council under Section 56 of the Highways Act 1980 and apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring a highway up to standard. He may also make a claim for any damage to his property which he believes results from the Council’s inaction.
9. Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mr X to go to court.
10. We will not investigate Mr X’s concerns about the Council’s website because the issue does not cause him significant injustice. While Mr X says the website is difficult to navigate he was able to report the defects and to raise his complaint with the Council. The Council has also explained it is in the process of reviewing its website to improve customer experience and it is unlikely investigation would achieve anything more for Mr X.
11. Mr X is also unhappy with the way the Council dealt with his complaint.  But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about.  We will not therefore investigate this issue separately.

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Final decision

12. We will not investigate this complaint because it is reasonable for the complainant to go to court.

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Investigator's decision on behalf of the Ombudsman