The Ombudsman's final decision
Summary: We will not investigate Ms B’s complaint about the Council refusing to repair a large pothole. This is because Ms B has not suffered a significant injustice and she may apply to court for an order requiring the Council to repair this road.
The complaint
Ms B complains the Council has refused to repair a large pothole on a main road which has been there for several years and is getting bigger. Ms B says local residents know about this pothole and slow down, but the road is also used by visitors. Ms B is also worried she may damage her car or be involved in an accident when using this road. Ms B says the Council should repair the road and if this is not possible, the Council should put up warning signs.
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 an investigation if we decide any injustice is not significant enough to justify our involvement. (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 provided by Ms B.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has recently inspected this pothole in response to Ms B’s concerns. The Council said this pothole does not meet the Council’s investigatory criteria as set out in the Council’s Highway Safety Policy. This means at the moment the Council does not intend to repair this road defect.
We will not investigate Ms B’s complaint.
I find Ms B has not suffered a serious or significant injustice which would justify an investigation by the Ombudsman. Ms B is aware of this pothole so can adjust her driving accordingly.
Also, it is unlikely an investigation would result in us finding the Council to be at fault for not putting up a sign warning motorists of this pothole. This is because there are likely to be a considerable number of road defects throughout the Council’s extensive road network which do not meet the Council’s criteria for repair. So, we would not expect the Council to display a warning sign for every defect.
But in any case, we take the view the courts are in the best position to decide whether a local highways authority has met its duty to maintain a highway.
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 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 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.
Ms B and any other affected residents may use this process to try to get the Council to repair the road. I find it is reasonable for Ms B to do this. 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.
Final decision
For the above reasons we will not investigate this complaint.
Investigator's decision on behalf of the Ombudsman