The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of a road because it is reasonable for him to go to court. We will not investigate Mr X’s complaint about the position of a traffic island because there is not enough evidence of fault to justify an investigation.
The complaint
Mr X complains the Council failed to address highway disrepair, resulting in a risk of damage to property. He also complains about a traffic island, which he says prevents access to his property.
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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained about damage to the road surface caused by building work on a new development.
Mr X has the right to apply to a Magistrates’ Court for an order requiring the Council to take whatever action is needed to bring a highway up to standard.
Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mr X to go to court and so I will not investigate.
Mr X also complained that a traffic island on the road near his home which he says prevents him from accessing his driveway in his motorhome.
The Council said it had done a safety and had not found any issues. It carried out a site visit and video recorded access to the driveway in an extra-large transit. It noted it could be done without difficulty. It suggested an alternative access route to Mr X. It considered whether it could move the traffic island.
I have considered the steps the Council took to consider the issue, and the information it took account of when deciding the traffic island was sited appropriately. The Council followed appropriate procedures when making this decision and, therefore, I cannot criticise it.
Final decision
We will not investigate Mr X’s complaint about the road surface because it is reasonable for him to go to court. We will not investigate Mr X’s complaint about the position of a traffic island because there is not enough evidence of fault to justify an investigation.
Investigator's decision on behalf of the Ombudsman