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
Mrs Y complained the Council has failed to properly repair a pothole and drain on her road.
The original drain issue has led to flooding on the road, which in turn has caused damage to her property and Mrs Y is concerned that the poor standard of repair completed by the Council will lead to a larger hole which may block her access to her property.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 Mrs Y provided and 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 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, including where defects have not previously been repaired fully.
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.
Mrs 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 Mrs 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.
Further, the legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to Mrs Y property and particularly lighting, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or the Council’s insurers. We will not investigate this complaint.
Final decision
We will not investigate Mrs Y’s complaint because the courts are better placed to deal with the complaint.
Investigator's decision on behalf of the Ombudsman