The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because it is reasonable for Mrs Y to approach the courts about the matter who are better placed to consider the complaint.
The complaint
Mrs Y complained the Council has failed to repair a clanking grate on the highway since she reported the issue in April. Mrs Y says this stops her from enjoying her home fully and regularly wakes her due to the noise.
The Ombudsman’s role and powers
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) 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))
How I considered this complaint
I considered information Mrs Y provided and the Ombudsman’s Assessment Code.
My assessment
Mrs Y complained to the Council about a grate on the highway which lifts and makes a noise when vehicles drive over it. The Council has responded to the complaint, confirming it has organised work to be completed to carry out a repair.
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.
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 grate. 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 within a specified time frame, 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 it is reasonable for Mrs Y to approach the courts about the matter who are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman