The Ombudsman's final decision
Summary: We will not investigate Miss C’s complaint that her home is being damaged due to the Council’s failure to maintain the road outside her home. This is because it is reasonable for Miss C to use her remedies available through the courts.
The complaint
The complainant, who I will refer to as Miss C, complains that the Council has failed to maintain the road next to her home. Miss C says this has resulted in excessive noise and vibrations, which has caused damage to her home and affected her health.
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 Miss C.
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 repair 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 Miss C’s home to the appropriate standard for traffic.
Miss C may use the process outlined above to try to get the Council to repair the road. I find it is reasonable for Miss C 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 Miss C considers her property has been damaged because of the Council’s failure to repair the road, she may pursue her compensation claim by taking the Council to court. Only a court can decide if an organisation has been negligent. So, I would usually expect someone in Miss C’s position to seek a remedy in the courts, directly or through her insurers.
Final decision
We will not investigate Miss C’s complaint because it is reasonable for her to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman