The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of a road and how the Council dealt with his complaint. It is reasonable for Mr X to take the highways matter to court. We do not investigate councils’ complaint handling where we are not investigating the core issues which gave rise to the complaint.
The complaint
Mr X lives on a road maintainable by the Council. He complains the Council: has failed to properly maintain the road; failed to properly investigate his complaint.
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)
How I considered this complaint
I considered information from Mr X and the Council, and the Ombudsman’s Assessment Code.
My assessment
Under Section 56 of the Highways Act 1980, Mr X has the right to apply to a Magistrates’ court for a repair order requiring the Council to take whatever action is needed to bring the highway up to standard.
We cannot make decisions on whether the Council has maintained the highway properly. Only the courts can decide whether the Council has maintained its highways to the appropriate standard. The law also gives the Council the right to defend in court any claims against it of disrepair to its highways. We would not disregard or go behind that right by investigating those sorts of claims. It is therefore reasonable for Mr X to go to court on the highway maintenance issue, and we will not investigate.
We recognise Mr X also complains about the Council’s handling of his complaint. We do not investigate councils’ complaint handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this aspect of the complaint.
Final decision
We will not investigate this complaint because: it is reasonable for Mr X to take the highways matters complained of to court; and we do not investigate councils’ complaint handling where we are not investigating the core issue giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman