The Ombudsman's final decision
Summary: We will not investigate Dr B’s complaint that the Council has failed to maintain the road where she lives. This is because it is reasonable for Dr B to apply for an order from the court.
The complaint
The complainant, who I will refer to as Dr B, complains that the Council is failing to maintain the road where she lives. Dr B says the Council has wrongly said it has recently repaired potholes she reported. Dr B is concerned her car will be damaged by large potholes which the Council has not repaired. Dr 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 Dr 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 highways 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. This 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.
Dr B may use this process to try to get the Council to repair the road. I find it is reasonable for Dr 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.
Final decision
We will not investigate Dr B’s complaint because it is reasonable for her to apply for an order from the court.
Investigator's decision on behalf of the Ombudsman