The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council’s maintenance of a road near where she lives. There is not enough evidence of fault by the Council to justify investigation. Even if there was fault, the matters complained of do not cause Ms X such significant personal injustice to warrant investigation. It would be reasonable for her to pursue any finding on whether the road meets legally acceptable standards through the court.
The complaint
Ms X complains the Council has failed to properly maintain a local road and its road markings. Ms X says she uses the road a lot and considers it is dangerous. She says she must slow down to pass over it and drive in the middle of the road to avoid potholes, and it makes her car shake. Ms X is frustrated at the Council’s responses and it ignoring her concerns. She wants the Council to take notice of complaints and repair the road.
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 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: there is not enough evidence of fault to justify investigating; or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 Ms X, online maps and the Ombudsman’s Assessment Code.
My assessment
We are not an appeal body. We cannot go behind a council’s decision solely because a complainant disagrees with it. We must consider whether there was fault in the council’s decision-making process. In this case, the Council says it has been and continues to inspect and monitor the road, responding to reports and doing maintenance where unsafe defects occur. It has confirmed the road has been earmarked for resurfacing in the 2024/25 financial year. It is for officers to gather evidence and use professional judgement to decide where the Council uses its resources, including which roads require resurfacing before others. There is not enough evidence of fault in the Council’s processes in responding to reports of defects on the road complained of, or when prioritising road works, to warrant an investigation. We recognise Ms X disagrees with the Council. But it is not fault for a council to properly make a decision with which someone disagrees.
Even if there has been fault by the Council, we will not investigate. We recognise Ms X has been and continues to be annoyed and frustrated by the road over several years and by what she sees as inadequate repairs. But the road remains open and usable by traffic. Ms X having to drive with care on a more uneven road surface than she would like to, when she chooses to use it, is not a sufficiently significant personal injustice to warrant us investigating. We realise Ms X says other road users will also be affected. But impacts of the matters complained of on others are not Ms X’s injustice.
We recognise Ms X considers the condition of the Council’s road is not up to a suitable standard. It is not our role to judge the standard of council roads. That is a matter for the courts, as set out in the Highways Act 1980. The 1980 Act also details the factors the court should consider when making its decision. If Ms X wants a ruling on whether the Council’s road meets legal condition requirements, it would be reasonable for her to pursue this in court because it is only the courts which can make that legal determination. She may wish to seek independent legal advice if taking that route.
Final decision
We will not investigate Ms X’s complaint because: there is not enough evidence of Council fault to warrant us investigating; and even if there was fault, there is not enough significant personal injustice caused by the matters complained of to justify an investigation; and it would be reasonable for her to pursue at court any finding on whether the Council’s road meets legally acceptable standards.
Investigator's decision on behalf of the Ombudsman