Summary: We will not investigate Mr X’s complaint about the Council’s failure to properly maintain a road. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to properly maintain part of the public highway. He says he suffered damage to his vehicle and believes the road is unsafe. He has spent a significant amount of time trying to establish who is responsible for the road and wants the Council to carry out repairs. He also believes it needs to fix street lights on the section of road which do not currently work, as he considers the darkness is dangerous for pedestrians.

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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 Ombudsman’s Assessment Code.

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My assessment

5. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary.
6. The issue in this case concerns a dispute over liability for maintaining the road. Mr X has contacted three different local authorities but he believes from the responses he has received that responsibility for maintenance of the section of road concerned rests with the London Borough of Ealing. However the Council disputes this and believes liability rests with one of the other local authorities or, potentially, a private landowner.
7. It is not our role to decide who is liable for maintaining the road or whether they met their duty under Section 41 of the Highways Act 1980. We also cannot determine if the Council is liable for the damage to his vehicle.
8. If therefore Mr X believes the Council is liable for maintaining the road and, as a result, for the damage to his vehicle, it would be reasonable for him to take the matter to court. Section 56 of the Highways Act 1980 provides a mechanism for Mr X to do this and allows for disputes over liability to be considered as part of the process. Mr X may also make a claim for the damage to his vehicle and the cost of repairs as part of his application to the court.
9. The law also provides a statutory defence for local authorities against claims for damages and it would not be appropriate for us to deny it the opportunity to use it.
10. Once Mr X has a decision from the court as to which local authority is responsible for the section of road in question he may wish to raise a report with the Council to fix the street lights. Until the question of liability is resolved we cannot determine whether Council is responsible for these lights.

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Final decision

11. We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman