The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because Ms Y can reasonably be expected to raise the issues with the courts, who are better placed to consider this complaint.
The complaint
Ms Y complained the Council has refused to repair the road leading to her property, despite its extremely poor state, due to its current classification which she thinks should be altered.
Ms Y says she is struggling to receive deliveries, affecting her business and the driving conditions have been so hazardous that she is struggling to leave her property on occasions.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6)) 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 considered information Ms Y and the Council provided and the Ombudsman’s Assessment Code.
My assessment
Ms Y says she first contacted the Council about the condition of the lane outside her home in August 2020. In February 2021, she received a letter from a postal delivery company, saying it would no longer deliver post to her due to the poor condition of the lane leading to her home. Ms Y then complained to the Council asking it to make repairs. The Council responded in August 2022, saying the lane was classified as a track, not to be used for normal traffic and only maintained to an agricultural standard. Ms Y then approached us in September.
Analysis 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, depending on their classification and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, 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. This order requires the highways authority to carry out the work needed to the highway. It can also consider whether the Council has classified the road correctly where this is disputed.
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.
Ms Y may use this process to try to get the Council to repair the road. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Ms Y to be expected to use her right to go to court about this matter.
Further, 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, so it is better placed than us to consider the complaint. We will therefore not investigate.
Investigator's decision on behalf of the Ombudsman