The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because the court is better placed to consider the issue and it is reasonable to expect the business to approach the court.
The complaint
This limited company complained the Council has failed to properly maintain a highway outside its offices.
The business is concerned that the condition of the road is a health and safety issue, including for its staff, particularly during the winter months.
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 the business provided and the Ombudsman’s Assessment Code.
My assessment
The business contacted the Council about the condition of the road surface in July 2020. The Council carried out a site visit in August 2020 and there was further correspondence about the road condition until the business made a complaint in March 2022.
The Council responded in July, explaining that although it had followed its tendering process, due to a change in process, it was currently unable to appoint a contractor to complete the works directly. It said it was therefore unable to give a timescale for when the work would be completed. The business 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, or a business in this case, 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. Such action will also establish whether the road is adopted, or in this case whether action needs to be taken against the Council as a landlord, which would also be for the courts to consider. A section 56 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.
The business 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. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for the company to be expected 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.
Final decision
We will not investigate the business’s complaint because the court is better placed to consider the issue and it is reasonable to expect the business to approach the court.
Investigator's decision on behalf of the Ombudsman