The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about various highway maintenance issues affecting his home. This is because there is not enough evidence of fault by the Council.
The complaint
The complainant, Mr X, complains about road resurfacing works carried out in his area. He says the Council initially resurfaced several roads but missed the one most in need of repairs. It then returned to resurface this road but the work has affected water draining from the highway. He also complains that a company has dug up the newly-resurfaced road to install superfast broadband infrastructure, leaving the surface in a state of disrepair. He believes the works should have been coordinated to reduce the impact on residents and to save money.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
As the local highway authority the Council has ultimate responsibility for the state of the highway including the road surface, any pavements and footpaths and drainage.
Mr X confirms the Council resurfaced the road to a high standard but he has concerns over the drainage of water from the new surface. The Council has inspected the work and found no issues with drainage but it has agreed to monitor the situation; this is a suitable way forward.
While Mr X is unhappy a company has now dug up the newly-resurfaced road the Council is not responsible for their actions. This is because they are delivering a statutory service under funding from central government. It would of course have been preferable for the work to be completed prior to resurfacing the road but it is not a failure by the Council that it was not.
Mr X suggests the work carried out by the company was not of the required standard and he is concerned it will lead to degradation of the road surface. In the event Mr X believes the surface of the road has fallen into disrepair he may serve notice on the Council and ask it to carry out repairs. If it fails to do so Mr X may apply to court for an order requiring it to act. The level of maintenance required under the Highways Act 1980 is not defined in law and the courts are better placed to decide if the Council has fulfilled its obligations.
Mr X is also concerned that by repeating work the Council and the company have wasted public money. But the impact of the work on the public pursue is a matter which affects ‘all or most’ of the people in the Council’s area and as such it falls outside our jurisdiction as set out at Paragraph 4 above.
Mr X’s complaint also refers to work carried out by a developer between 2019 and 2021 which caused disruption to his property. Again this is not something we could hold the Council responsible for and any complaint about the issue appears late in any event. The injustice Mr X claims from the issue is also not significant enough to warrant investigation.
Final decision
We will not investigate this complaint. This is because there is not enough evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman