Summary: We will not investigate Mrs B’s complaint about the Council failing to maintain the roads near her home. This is because it is reasonable for Mrs B to apply to court for an order requiring the Council to repair these roads.

The complaint

1. Mrs B complains the Council is failing to maintain two roads near her home which are in an appalling condition. Mrs B says she has been reporting potholes since 2023 but the Council has failed to plan and prioritise works in her area. Mrs B also complains the Council’s highways and complaints systems do not provide the user with a copy of the details of their report or complaint. And, the Council significantly delayed responding to her complaint.

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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 Mrs 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 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. This order requires the highways authority to carry out the work needed to the highway.
9. Mrs B may use this process to try to get the Council to repair these roads. I find it is reasonable for Mrs B to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain these highways. Also, unlike the Ombudsman, the court can order the Council to do the required work.
10. So, we will not investigate Mrs B’s complaint about the Council’s maintenance of these roads.
11. Because we are not investigating the main issue complained about, an investigation only into the operation of the Council’s reporting system and the Council’s handling of Mrs B’s complaint would not be a good use of our limited resources.

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Final decision

12. We will not investigate Mrs B’s complaint because it is reasonable for her to apply for an order from the court.

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Investigator's decision on behalf of the Ombudsman