The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of the road near where he lives and it not prioritising its resurfacing. 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 Mr X such significant personal injustice to warrant us investigating. It would be reasonable for him to make any claim of damage to his vehicle to the Council’s insurers then to court if required, and for him to pursue any finding on whether the road meets legally acceptable standards through the court. We also cannot achieve the outcome Mr X wants.
The complaint
Mr X lives on road A which is linked to another residential road, road B, serving his area. He complains the Council: has failed to properly maintain road B; said several years ago it would resurface road B but has not done so.
Mr X says he has to swerve constantly to avoid holes when driving on road B. He says this causes unnecessary wear and tear on his vehicle. He considers the Council’s repairs are substandard, false economy and affect the public’s wellbeing. Mr X wants the Council to resurface the road as they said they would several years ago.
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 fault has not caused injustice to the person who complained; or any injustice is not significant enough to justify our involvement; or we cannot achieve the outcome someone wants.
(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 provided from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.
My assessment
The Council says it has been and continues to inspect road B, responding to reports and doing maintenance where defects affecting safety occur. It has confirmed road B has been earmarked for resurfacing. Officers say they cannot confirm when the work will be done. They say that while a location may be on the repairs list, other more urgent sites may then arise, pushing back less urgent works. It is for officers to gather evidence and use their 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 response to reports of defects on road B or its approach to prioritising road repairs to warrant an investigation.
Even if there has been fault in the way the Council has prioritised its resurfacing works on road B, we will not investigate. We recognise Mr X has been and continues to be annoyed and frustrated by the road’s state over several years and by what he sees as inadequate repairs which make the road less smooth. But the road remains open and usable by traffic. Mr X having to drive with care on a more uneven road surface than he would like is not a sufficiently significant personal injustice to warrant us investigating. We understand Mr X says other users of road B will also be affected. But impacts of the matters complained of on others are not Mr X’s personal injustice.
We note Mr X says road B has caused wear and tear to his vehicle. If he holds the Council responsible for this, it would be a claim of damage to his property. If Mr X wishes to make such a claim, he may do so through the Council’s insurers. If he is dissatisfied with the claim outcome, it would then be a matter for the courts to decide, not the Ombudsman. It would be reasonable for Mr X to pursue this route for any such claimed loss because we cannot determine liability in property damage claims, which are for insurers or the courts to decide.
We recognise Mr X considers road B’s condition is not up to a suitable standard. It is not our role to judge the standard of councils’ 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 a decision. If Mr X wants a ruling on whether road B’s condition meets legal requirements, it would be reasonable for him to pursue this in court because it is only the courts which can make that legal determination. He may wish to seek independent legal advice if taking that route.
The outcome Mr X wants from his complaint is for the Council to resurface road B. We cannot order councils to prioritise particular roads over others. That we cannot achieve the outcome Mr X wants is a further reason why we will not investigate.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of Council fault to warrant us investigating; and even if there was such fault, there is not enough significant personal injustice caused by the matters complained of to justify an investigation; and it would be reasonable for him to take any claim of Council liability for damage to his vehicle to its insurers and then to the courts if required; and it would be reasonable for him to pursue at court any finding on whether road B meets the legally acceptable standards; and we cannot achieve the outcome he wants.
Investigator's decision on behalf of the Ombudsman