Summary: We will not investigate how the Council has dealt with the complainant’s concerns about the condition of the highway near his home. It is unlikely we would find evidence of fault and the complainant can seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has not properly maintained the highway near his home. He says this causes noise and vibration which disturbs him. He says the Council should inspect the roads, carry out repairs and pay him compensation.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. It 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
4. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained;
• the injustice is not significant enough to justify our involvement; or
• it is unlikely we could add to any previous investigation by the Council. (Local Government Act 1974, section 24A(6), as amended)

5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I have considered what Mr B said in his complaint. The Council also provided background information including its response to Mr B’s concerns. I invited Mr B to comment on a draft before I made this decision.

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What I found

7. I consider the Council has provided a full response to Mr B’s concerns and investigation would add nothing significant to what we know.
8. The Council has not ignored Mr B’s reports about the condition of the road. However, it has explained it has to prioritise how it uses its resources and that it has carried out repairs it thinks necessary. While Mr B may disagree with the Council’s view, these are decisions for the Council to make. I have seen no evidence of fault by the Council in this.
9. The Council has also explained a particular issue with an inspection cover is the responsibility of the local water company. The Council has made the company aware of Mr B’s concerns.
10. While I have seen no evidence of fault by the Council, I consider he also has a remedy in court. Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
11. If Mr B considers the Council is not keeping the road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
12. I consider it would be reasonable for Mr B to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

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Final decision

13. I have decided we will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council and Mr B can seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman