The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s decision to not repair highway potholes near her property, prioritise works to other highways, or how it replied to her complaint. There is not enough evidence of fault in the Council’s decision-making to warrant an investigation. Even if there were such fault, the matters complained of do not cause significant personal injustice to her justifying investigation. We do not investigate council complaint‑handling where we are not investigating the core issue giving rise to the complaint. It would be reasonable for Mrs X to pursue a finding on whether the road meets legally acceptable standards at court.
The complaint
Mrs X lives in a property with a driveway served by a dropped kerb. There is a pothole in the road’s surface, next to the kerb, and one in the pavement. Mrs X complains the Council: has decided the condition of the highway did not meet their criteria for repair because of lack of budget; failed to inform her of their decision until she chased the matter; has unfairly repaired other highway defects in the area instead when they have been reported by a local councillor; failed to answer all her points when responding to her complaint.
Mrs X says she feels let down and undervalued by the Council. She says passing vehicles splash water, mud and gravel from the road defect on to the pavement in front of her property and the road is awful to drive along.
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.
(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 Mrs X, relevant online images and the Ombudsman’s Assessment Code.
My assessment
Mrs X reported the highway defects in late 2023. The Council’s officer visited the site on the same day to assess the risks posed by the defects. The officer determined they did not meet the Council’s criteria for repair. They placed the case on its list, to be reinspected every three months, and note any deterioration which may meet the repairs criteria in future. 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.
We note Mrs X considers the Council is prioritising and funding other highway repairs wherever a local councillor is involved in reporting a defect. It is for officers to gather evidence and use their professional judgement to decide where the Council uses its resources, including which roads require repairs before others. That is what officers did here. If officers determined other repairs, whether reported by a councillor or not, should be prioritised, that is a decision for them to make. There is not enough evidence of fault in the Council’s response to reports of defects on Mrs X’s road, its decision not to do repairs, or in its approach to prioritising highway repairs to warrant an investigation.
The Council accepts it did not advise Mrs X of its decision not to do the highway repairs she reported. It says it does not have the resources to do so on each case. It would have be best practice if the Council could report back. But Mrs X received the Council’s decision once she chased the matter. That she had to chase the response, and the delay in her receiving the Council’s decision, are insufficient personal injustices to Mrs X to warrant us investigating.
Even if there has been fault in the way the Council prioritised its repairs here, we will not investigate. We recognise Mrs X is annoyed and frustrated by the highway’s condition, and is disappointed the Council has not given the repairs the priority she wants. But this disappointment, and water or debris being splashed on to the pavement by passing traffic from one of the potholes, is not sufficient significant personal injustice to her to warrant us investigating.
Mrs X says the Council did not respond to all the points she raised in her complaint. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
We note Mrs X says the road is awful to drive on. She may consider its condition is not up to standard. But 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 includes the factors the court should consider when making a decision. If Mrs X wants a ruling on whether the road’s condition meets legal 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 Mrs X’s complaint because: there is not enough evidence of fault in the Council’s decision-making processes to determine not to do works to the highway in front of her property and prioritise other works to warrant investigation; and even if there has been Council fault, the matters complained of do not cause her such significant personal injustice to justify us investigating; and we do not investigate councils’ complaint-handling where we are not investigating the core issue giving rise to the complaint; and it would be reasonable for her to pursue at court any finding on whether her road meets the legally acceptable standards.
Investigator's decision on behalf of the Ombudsman