The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that the Council has failed to maintain the road outside her home. This is because it is reasonable for Mrs B to use her remedies available through the courts.
The complaint
The complainant, who I will refer to as Mrs B, complains that the Council has failed to maintain the road next to her home. Mrs B says this means the house vibrates when lorries drive past. Mrs B says the Council has not given proper consideration to the impact on the quality of life of residents who live on this road. Mrs B would like the Council to witness the issue and arrange for the road to be re-surfaced.
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 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 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 Mrs B’s home to the appropriate standard for traffic.
Mrs B may use the process outlined above to try to get the Council to repair the road. I find it is reasonable for 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 Mrs B considers her property has been damaged she may put in a compensation claim, and if needed, take the Council to court. Only a court can decide if an organisation has been negligent. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman