Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to consider the complaint, and it is reasonable to expect Mr Y to approach the court if he wants to pursue the matter.

The complaint

1. Mr Y complained the Council has failed to properly maintain his road and has failed to address safety, infrastructure and environmental concerns. Mr Y is also unhappy with the Council’s response to his complaints about this and feels the Council has failed to keep him and other residents safe from speeding cars along the road.

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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 impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to reasonably maintain and repair the highway so it is free of danger to all users using the highway in a way normally to be expected. This means the Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. If a person considers that a highways authority has failed to maintain a highway it is responsible for and it is no longer safe, 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.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
9. Mr Y may use this process to try to get the Council to carry out work on the road. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
10. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint.
11. In this case the Council has explained that from its professional experience, the speed bumps Mr Y has suggested would not solve the issues that Mr Y has complained of and said that this would not be a good use of resources.
12. We are unlikely to find fault with the Council’s approach as it is entitled to make a judgement on where to prioritise its resources based on its professional assessment. Consequently, we will not investigate this complaint as there is insufficient evidence of fault to justify use of public resources to do so.
13. As we are not investigating the substantive issue, it is not a good use of resources to investigate how the Council dealt with Mr Y’s complaints. We will not investigate this.

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Final decision

14. We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint, and it is reasonable to expect Mr Y to approach the court if he wants to pursue the matter.

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Investigator's decision on behalf of the Ombudsman