The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for the complainant to go to court.
The complaint
Mr Y complains the Council failed to address highway disrepair outside his property resulting in damage to his vehicle and the risk of personal injury to a family member who is Disabled. He says the road outside his property is sunken, which damaged his vehicle when the towbar struck the sunken road. Also, he says water pools in the road and footpath, which freezes over in winter creating a slip hazard for his Disabled family member.
Mr Y complains about the Council’s complaint handling. He says the Council failed to deal with his complaint in a timely manner and did not consider all aspects of his complaint, including his requests for reasonable adjustments.
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) 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 any injustice is not significant enough to justify our involvement. (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 Y 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 Y to go to court and so I will not investigate.
It is not a proportionate use of our resources to investigate the Council’s complaint handling, including its handling of reasonable adjustments, when we are not investigating the substantive issues. Any separable injustice is not significant enough to justify our involvement. So, we will not investigate.
Final decision
We will not investigate this complaint because it is reasonable for the complainant to go to court.
Investigator's decision on behalf of the Ombudsman