The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about highway repair. It is reasonable for Mr X to pursue the matter through the courts.
The complaint
Mr X complains the Council has failed to repair a highway which has been closed to motor vehicles since 2022. He says the ongoing failure is causing distress, inconvenience and affecting his business. He wants the Council to repair the highway.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council as local highway authority has a statutory duty to maintain adopted highways. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary.
If a person considers a highway authority has failed to maintain or repair a highway it is responsible for, the person 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.
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 matter. We will therefore not investigate Mr X’s complaint because it is reasonable to expect him to use the court remedy available to him.
If Mr X considers the Council’s actions have caused financial loss to his business, he can make a claim through the Council’s insurers for compensation. If he is dissatisfied with the response, he can take the matter to court. Only a court can decide whether the Council is liable for financial losses and whether to award Mr X compensation.
Final decision
We will not investigate Mr X’s complaint because if he is dissatisfied with the Council’s actions, it is reasonable for him to pursue the matter through the courts.
Investigator's decision on behalf of the Ombudsman