The Ombudsman's final decision
Summary: We will not investigate this complaint about water pooling around traffic calming installations and an associated lack of maintenance. It is reasonable to expect the complainant to apply for an order from the court which requires the Council to repair/maintain the highway.
The complaint
Mr X complains water pools around defective traffic calming installations in his road and the Council fails to clear the associated build-up of muddy weeds.
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 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) And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information provided by Mr X, and the Ombudsman’s Assessment Code.
My assessment
The Council as a local highway authority has a statutory duty to maintain adopted highways. 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.
I understand the Council has now undertaken works to the installation outside Mr X’s property, to prevent water pooling there. If Mr X thinks remedial works are needed at the other installations along his road, or if he thinks the Council is failing to properly maintain them, he may use the section 56 process to try to get the Council to take further action.
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 Mr X’s complaint because it is reasonable to expect him to use the court remedy available to him.
As we will not investigate the substantive issue being complained about, it would not be a good use of our resources to investigate Mr X’s associated concerns about poor communication by the Council in isolation.
Final decision
We will not investigate Mr X’s complaint because it is reasonable to expect him to pursue the substantive matter in court, and we will not investigate the alleged communication errors in isolation.
Investigator's decision on behalf of the Ombudsman