The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to consider the complaint.
The complaint
Mr Y complained the Authority has failed to repair potholes in a road which goes over a railway bridge. Mr Y says he is concerned for his safety as a driver and the public generally for using the bridge due to the poor condition of the road.
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))
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y complained to the Authority in October 2022 about the poor condition of the road above a railway bridge which he had become concerned about. Mr Y has told us he initially contacted two local councils about the issue, but was told the Authority were responsible for the highway condition over the bridge. The Authority responded at the end of October, saying it was not responsible for the highway and referred Mr Y to us. Mr Y then approached us in November.
Analysis In this case, the Authority has disputed its responsibility for the maintenance of the highway Mr Y has complained about. We cannot decide which Authority is responsible for the highway maintenance when this is in dispute. This is something which the courts would need to determine and so the courts are better placed than us to consider this complaint and we will not investigate.
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. If the 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.
Mr Y may use this process to try to get the Authority 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 and in some cases, it may be possible for costs to be claimed from the other side. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
Further, the court is in the best position to decide whether the Authority has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Authority to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate this complaint.
Final decision
We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman