The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council has failed to repair a defective section of road outside the complainants’ home. This is because it is reasonable for Mr and Mrs B to apply for a court order requiring the Council to repair the road.
The complaint
The complainants, who I will refer to as Mr and Mrs B, complain that the Council has failed to repair a defective section of road outside their home. Mr and Mrs B say this results in their house shaking every time heavy goods vehicles drive past. Mr and Mrs B are concerned that if the Council does not repair the road, the structure of their home could be damaged. Mr and Mrs B would like the Council to repair the road.
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 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)
How I considered this complaint
I considered information provided by Mr and Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
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 the highway and carry out repairs where necessary. But, the level of maintenance, frequency of inspections, and threshold for repairs is not set out in law and is open to interpretation.
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. The order requires the highways authority to carry out the work needed to the highway.
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.
The Council says it has maintained the road outside Mr and Mrs B’s home to the appropriate standard for traffic.
Mr and Mrs B may use the process outlined above to try to get the Council to repair the road. I find it is reasonable for Mr and Mrs B to do this. 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.
In addition, if in future Mr and Mrs B consider their property has been damaged because of the Council’s failure to repair the road, they may put in a compensation claim to the Council. If needed, Mr and Mrs B may pursue their claim at court. Only a court can decide if an organisation has been negligent. So, I would usually expect someone in Mr and Mrs B’s position to seek a remedy in the courts, directly or through their insurers.
Final decision
We will not investigate this complaint because it is reasonable for Mr and Mrs B to take action at court.
Investigator's decision on behalf of the Ombudsman