Summary: We will not investigate this complaint that the Council should repair potholes and cracks along the complainant’s road. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to approach the courts with his concerns.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council should undertake repairs to potholes/cracks along his road as they are a trip hazard. Mr X is registered blind and says he often has to walk along the road when the footpath is obstructed by parked vehicles and street furniture.

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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.
3. 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Council, which included their complaint correspondence.
5. I also considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. If a person considers that a highways authority has failed to properly maintain a highway it is responsible for, they can apply to a Magistrates’ court for an order to be made under section 56 of the Highways Act 1980, requiring the authority to take whatever action is needed to bring the highway up to standard.
8. Mr X may use this process to try to get the Council to repair the road and, whilst I acknowledge he has a visual impairment, I find it is reasonable for him to do so. Reasonable adjustments can be made to access the service, and the court is in the best position to decide whether the Council has met its legal duty to maintain the highway in this particular scenario. In addition, and unlike the Ombudsman, the court can order the Council to do the required work.
9. Similarly, if Mr X has suffered an injury from tripping on the road surface, we would normally expect him to pursue this via the courts too. This is because it is essentially a negligence claim, and only the courts can decide if the Council is liable for any injury caused. Furthermore, the courts would have the power to award damages against the Council. The Ombudsman has no such power to enforce an award of damages.

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Final decision

10. We will not investigate Mr X’s complaint because it is reasonable to expect him to use the court remedies which are available to him.

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Investigator's decision on behalf of the Ombudsman