Summary: We will not investigate Ms X’s complaint that the Council has failed to maintain the road where she lives. Ms X has an alternative legal remedy at court if she believes the road is in disrepair which it is reasonable for her to use. The Ombudsman cannot achieve what Ms X wants.

The complaint

1. Ms X complains the Council has failed to repair potholes in her street in over a year. Ms X says she experiences vibrations and noise at home.
2. Ms X complains the Council has not handled her complaint properly. She has had replies from the same officer who also wrote to her MP.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I have considered Ms X’s information and comments and discussed the complaint with her by telephone. The information includes the Council’s reply to the complaint. I have also considered internet street scene views of the street (November 2020).

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My assessment

7. I will not investigate Ms X’s complaint for the following reasons:
8. The complaint is outside the Ombudsman’s jurisdiction because there is a legal remedy if Ms X believes the road is in a state of disrepair. The Highways Act 1980 (sections 56-58) provides a procedure whereby a person can apply to court for an order requiring a highway authority to repair a road. I consider it reasonable for Ms X to use her remedy. A court has the power to decide the case and it is possible to claim expenses.
9. The Ombudsman cannot achieve what Ms X wants. The Council says its inspector visited the road, following Ms X’s contacts, and did not find a priority repair. It says the road is worn and it is considering including in the next preventive maintenance programme. It is not likely work would be done before summer 2023.
10. Ms X can obtain the highway records for her street from the Council, if necessary via a freedom of information request.
11. The Ombudsman will not normally investigate complaint handling when the substantive issue is not being investigated. The Council has replied to Ms X and her MP and explained its position.

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Final decision

12. The Ombudsman will not investigate Ms X’s complaint the Council has failed to maintain the road where she lives. Ms X has an alternative legal remedy at court if she believes the road is in disrepair which it is reasonable for her to use. The Ombudsman cannot achieve what Ms X wants.

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Investigator's decision on behalf of the Ombudsman