Summary: The Ombudsman will not investigate this complaint about the condition of roads in the Council’s area. He is unlikely to find fault by the Council and the complainant can also seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr C, has complained about how the Council has dealt with his concerns about the condition of roads within its area and the height of speed humps. Mr C says his car has been damaged as a result.

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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 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)

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered what Mr C said in his complaint and background information provided by the Council. I discussed a draft with Mr C before I made this decision.

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What I found

Condition of the road

6. Mr C has reported several issues with roads within the Council’s area. The Council has not ignored these but does not consider repairs are needed. This is a matter for the Council to decide and I consider we are unlikely to find fault in how it has done so.
7. Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
8. If Mr C remains of the view that the Council is not keeping a road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
9. I consider it would be reasonable for Mr C to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Road humps

10. Mr C believes the Council should reduce all road humps to 3 inches (75 mm). The current legislation (The Highways (Road Humps) Regulations 1999) allow road humps up to a height of 100 mm. I therefore do not consider the Council is at fault for having road humps higher than 75 mm.

Damage to vehicles

11. Mr C says he has car has been damaged because of the condition of the road. His complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
12. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr C’s position to seek a remedy in the courts, directly or through his insurers.

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Final decision

13. I have decided we will not investigate this complaint for the reason given in paragraphs 9, 10 and 12.

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Investigator's decision on behalf of the Ombudsman