Summary: We will not investigate Mr B’s complaint that the Council is failing to maintain roads in his local town. This is because it is reasonable for Mr B to apply to court for an order requiring the Council to repair the roads.

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council is failing to repair potholes in his local town. Mr B says he and other residents report defects but the Council does not take these reports seriously and does not repair potholes which need to be repaired. Mr B also says repairs undertaken by the Council are of a poor quality and have to be done again. Mr B would like the Council to take reports from members of the public seriously and not dismiss them.

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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 Act 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 B.
5. I 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 maintain a highway it is responsible for, the person affected 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.
8. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
9. In response to Mr B’s complaint, the Council said it assessed each of the defects reported by Mr B. But, the Council said, the defects did not meet the Council’s criteria for repair, so no action would be taken at the moment.
10. Mr B and other residents may use the process outlined above to try to get the Council to repair the defects they have reported.
11. I find it is reasonable for Mr B to do this. 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.
12. So, we will not investigate Mr B’s complaint.

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Final decision

13. We will not investigate Mr B’s complaint because it is reasonable for him to pursue this matter at court.

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Investigator's decision on behalf of the Ombudsman