The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because it is unlikely we would find fault and it is reasonable to expect Mr Y to use the remedies available to him at court.
The complaint
Mr Y complained the Council failed to give him a proper date for when his road will be repaired fully and resurfaced.
Mr Y says the road is unsightly and will cause damage to vehicles shortly. He would like the road repaired fully, rather than patch repairs being used.
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) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y says his neighbours have been complaining about the condition of the road he lives on for at least 20 years. He complained to the Council about defects in the road in January 2022. The Council carried out patch repairs shortly following this. Mr Y does not think this is sufficient and thinks the road should be fully resurfaced.
Mr Y complained further in May. The Council responded in June saying it had considered the condition of the road, but as it was low risk, it was not a priority for repair. It said in a later response in July, that although it intended to repair the road it did not know when it would do so, due to its need to prioritise repairs based on need. Mr Y then approached us.
Analysis As the Council has considered the state of repair on the road and has carried out any necessary smaller repairs it deems necessary as the Highways Authority, it is unlikely we would find fault. This is because, while MR Y may disagree, the Council has considered the issue taking into account relevant criteria, including risk and priority. It has also explained why it is not able to give Mr Y a date for when it will resurface the road. Consequently, it is unlikely we would find fault in this complaint and so we will not investigate it.
However, if Mr Y believes the Council is neglecting its duty to repair the road, he can serve notice on the Council to repair the road. If the Council does not, he can then take court action for an order from the Magistrates court, requiring the repairs under section 56 of the Highways Act 1980. The order requires the highways authority to carry out the work needed to the highway within a deadline.
Mr Y may use this process to try to get the Council to repair the road. I find it is reasonable for him to do this. 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.
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 Mr Y to be expected to use his right to go to court about this matter and we will not investigate this complaint for this reason also.
Final decision
We will not investigate Mr Y’s complaint because it is unlikely we would find fault and it is reasonable to expect Mr Y to use the remedies available to him at court.
Investigator's decision on behalf of the Ombudsman