The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to repair a road. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The complainant may take his complaint to court.
The complaint
Mr X complains the Council has failed to repair the road outside his home.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
How I considered this complaint
I considered information provided by the complainant including the Council’s responses.
I considered the Ombudsman’s Assessment Code.
My assessment
The law gives people the right to apply to the crown court or magistrates’ court (depending on the circumstances) for an order to repair a Council-maintained highway. The procedure is at section 56 of the Highways Act 1980. The court will then hear any evidence either party submits and decide if the road is out of repair. If the court decides the road is out of repair, it can order the Council to repair it.
This means the restriction in paragraph 3 applies to this complaint. Mr X could ask the court to consider whether road needs repairing.
The law specifically provides this route for dealing with disputes about whether a road needs repairing. Mr X pursued the matter with the Council and the Ombudsman, so I see no reason to consider it unreasonable to expect him to go to court.
Also, the court can order the Council to do repairs if it considers that necessary. The Ombudsman does not have this power.
Final decision
We will not investigate Mr X’s complaint. He can ask the court to establish whether the road is out of repair. If the court decides it is, it can order the Council to repair it.
Investigator's decision on behalf of the Ombudsman