The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint that the Council has failed to properly maintain a public highway. This is because it would be reasonable for Mr X to take the matter to court.
The complaint
The complainant, Mr X, complains the Council has failed to repair a defect in the public highway which he considers to be a hazard to road users.
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)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
We cannot interpret the law to say the Council has failed to fulfil its duty. So if Mr X believes the road is out of repair and that the Council should fix it, it would be reasonable for him to take the matter to court. Section 56 of the Highways Act 1980 allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and apply to the court for an Order requiring it to carry out repairs.
Investigator's decision on behalf of the Ombudsman