The Ombudsman's final decision
Summary: We will not investigate this complaint about vibration from vehicles using a section of road. This is because Mrs X could take court action.
The complaint
Mr Y complains on behalf of his mother Mrs X that the Council has not properly repaired the road and the highway drainage system outside Mrs X’s house. Mr Y reports this results in the house vibrating when vehicles pass over that section of road, causing distress and inconvenience.
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) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Anyone who alleges a highway is out of repair can serve notice on the Council and, if the Council does not repair the highway, can then ask a court to order the Council to repair the highway. (Highways Act 1980, section 56) So the restriction in paragraph 2 above applies.
As the law expressly provides the right to go to court on such matters, we normally expect people to use that right. The law also gives the Council the right to use a defence that it has made the highway safe. That is also a reason it would be reasonable to let the matter be decided in court. The court could consider any arguments about whether the sort of vibration Mrs X’s property experiences indicates a safety problem on the road. I appreciate Mrs X and Mr Y might argue the Council should carry out repairs to stop the disruption they experience irrespective of whether the Council has already made the highway safe. However, if we were to investigate on that basis, we would risk holding the Council standard of highway maintenance than the law requires, which would not be appropriate.
I appreciate serving notice and, if necessary, going to court, would involve some effort and expense. I am mindful Mrs X is elderly so might not necessarily find this as straightforward as others might do. However, I am not persuaded that in itself makes it unreasonable to expect Mrs X to take court action (with assistance if necessary), in the context of all the relevant factors here.
Separately, the argument about whether the Council’s legal duty to repair the highway extends to preventing vibration such as Mrs X experiences, is essentially an argument about interpreting the law. The Ombudsman cannot interpret the law; only the courts can do that.
Mr Y is also dissatisfied with aspects of the Council’s dealing with him on this matter, for example, the Council’s communications, level of service and the standard of some work done to the road. Those points are peripheral to the main point about the vibration. It would be disproportionate to devote time and public money to investigating those points when we are not investigating the substantive issue.
Final decision
We will not investigate Mrs X’s complaint because she can take court action on the main question of whether the Council should repair the road to stop the vibration.
Investigator's decision on behalf of the Ombudsman