The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to consider this complaint.
The complaint
Ms Y complained the Council has failed to properly maintain the road outside her property and the connecting gullies used for drainage, despite having agreed previously that repairs would be needed. Ms Y says the Council has cleared gullies on the opposite side of the road, but not on the side she lives on in a basement flat.
Ms Y says this means she often has to go out to clear the gullies herself with neighbours during heavy rain to prevent her home from being flooded, causing her physical strain.
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 Ms Y provided and the Ombudsman’s Assessment Code.
My assessment
Ms Y complained the Council has not repaired the road on which she lives and the maintenance of the gullies, to keep them clean, is insufficient. The Council has agreed that it took longer to clear the gullies, which it has apologised for, but this work has now been carried out with further cleaning of the gullies due in September 2024.
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. If there is further dispute about the maintenance of the road, the person may apply to the Crown court for such an order.
Ms 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 Ms 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 Ms Y’s complaint because the courts are better placed to consider this complaint.
Investigator's decision on behalf of the Ombudsman