The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s failure to repair a public highway. Nor will we investigate his complaint about the damage his car suffered because of the road surface. This is because he may go to court about both matters.
The complaint
In summary, the complainant - who I have called Mr X – says the Council failed to repair a ‘passing place’ part of the road. He also says his car was damaged due to the repairs needed.
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 have considered the complaint information provided.
Background
Section 56 of the Highways Act 1980 says that a person may serve a notice on a highway authority requiring it to confirm it is responsible for maintaining a highway. 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 responsible for maintaining the highway and, if so, order the authority to repair the highway within a reasonable period. If responsibility for maintaining the highway is not disputed the person can apply to a magistrates’ court.
A court also decides claims of negligence and whether a highway authority is liable for paying “damages” for the loss or injury someone suffers.
Assessment We will not investigate this complaint.
Mr X is, in effect, saying the Council has failed to properly maintain the road. So Mr X may take his complaint to the Magistrates’ Court. It would then be for the Court to decide what, if anything, the Council should do regarding the surface of the road and set a timescale for any works it decides are necessary.
Mr X is also, in effect, saying the Council is negligent by failing to keep the road in good condition. The result of this is that his car was damaged. Mr X may take the matter to court. It would then be for the Court to decide whether the Council was, in fact, negligent and what, if anything, it should pay for the damage to her car.
It would be reasonable for Mr X to go to court if he believes the Council has failed to maintain the road. This is because the court has the power to require the Council to do works to the road. We do not have the power to do so.
It would also be reasonable for Mr X to go to court if he wants payment for the damage to his car. It is not our role to decide whether a council has been negligent. That is a matter for the courts.
Final decision
We will not investigate Mr X’s complaint. This is because he may go to court.
Investigator's decision on behalf of the Ombudsman