The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to deal with the complaint.
The complaint
Mrs Y complained the Council has failed to ensure her road was reinstated properly following works on the road. This has led to further deterioration of the road surface, causing problems to Mrs Y’s 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 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
Mrs Y says the outside of her property now needs work carrying out as a result of the problem and is seeking the funds for this to be provided by the Council. Such a payment is also known as damages.
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 or personal injury. We cannot determine liability claims for negligence. 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, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. We will not investigate this complaint.
Further, 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.
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.
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