The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because Mr Y can reasonably be expected to raise the issue with the courts, who are better placed to consider this complaint.
The complaint
Mr Y complained the Council has failed to repair the road and pavement near his home, which he says is causing damage to his property, especially around a coal chute.
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) 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y complained to the Council about water coming off the road in early 2022. The Council investigated before responding that in its view it was not responsible for the damage to Mr Y’s home in February, and after further discussions with another local council related to the area, in November. Mr Y then approached us.
Analysis The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. It can also consider whether the Council has classified the road correctly where this is disputed.
If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
Mr Y may use this process to try to get the Council to repair the road. 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, such as a pension from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary, including having an appointed representative. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.
Further, 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, so it is better placed than us to consider the complaint. We would only be able, even if we found fault causing injustice, to ask the Council to consider if repairs are needed, which would not achieve Mr Y’s desired outcome.
Mr Y has also said that the problem has caused damage to his home, which is having now experiencing damp. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his property, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts, potentially through insurers initially. We will not investigate this complaint.
Final decision
We will not investigate Mr Y’s complaint because Mr Y can reasonably be expected to raise the issue with the courts, who are better placed to consider this complaint.
Investigator's decision on behalf of the Ombudsman