Summary: We will not investigate this complaint about a road. There is not currently significant enough injustice to warrant investigation. Mr X could reasonably take court action in future if he were to believe road vibration was damaging his property. He could also reasonably take court action if he believes the road’s condition is unsafe. It is also unlikely we could achieve more than the Council is already doing.

The complaint

1. Mr X complains the Council has not done works to the road outside his home. He says the road’s condition is worsening, he fears vehicles using the road will cause vibration at his home in future and he is concerned about the road itself.

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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)
4. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
5. We investigate 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 continue an investigation if we decide any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X’s main concern is the road surface outside his home will worsen further and passing vehicles will make his home vibrate. He reports this happened in the past, before previous road repairs. So Mr X fears damage to his property. Mr X’s complaint to us is clear this is not happening yet, but he anticipates the vibration will resume. So there is no significant injustice in practical terms just now. I understand Mr X’s fear of future problems, but that is not a strong enough reason for us to devote time and public money to investigating now.
9. Also, if in future Mr X concludes the road’s condition affects his property, he could make an insurance claim and, if agreement could not be reached, he could take court action. In that case, the restriction in paragraph 3 would apply. The extent of the Council’s duties towards neighbouring properties, responsibility for damage and ordering remedial works and/or compensation are more properly for the courts than for us. So it would be reasonable to expect Mr X to take court action if he believes vibration-related damage has restarted.
10. I appreciate Mr X might also have concerns the road’s current state makes it unsafe for road users. Anyone can apply for a court order for the Council to put a road into proper repair. (Highways Act 1980, section 56) So the restriction in paragraph 3 applies here. The law expressly provides that route for such situations. The court can hear evidence on oath. Court action would allow the Council the opportunity to use a specific legal defence if it sees fit. (Highways Act 1980, section 58) The court is better placed to decide such matters and can make a binding order. There might be a potential cost to court action, but that is not in itself automatically a reason to consider court action unreasonable. Mr X could get help with court costs if he is eligible and could ask for his costs if court action succeeds. Overall, it is reasonable to expect Mr X to use his right to take court action if he is concerned about the road’s condition for users.
11. Mr X says the Council doing works now rather than later will cost the public purse less. The only financial impact on Mr X would be as a council tax payer. So that would not affect Mr X more than most residents of Surrey. Therefore the restriction in paragraph 4 prevents us considering this point.
12. Also, the Council has now said it will survey the road then score its findings in accordance with its policy for prioritising works so it can decide if and when to do works. That process is underway. Mr X suggests the Council later ruled out any works at all on his road. That seems to be a misunderstanding. Mr X had sent the Council a newspaper article about a particular resufacing technique. The Council replied that was not suitable for Mr X’s particular road. This did not change the position that the Council is doing a survey to decide how to proceed. It is not for us to say if the road needs work, or what type of work it needs, or what priority any work should have compared with other roads that need work. So any investigation by us would be unlikely to achieve significantly more.

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Final decision

13. We will not investigate Mr X’s complaint. There is not currently significant enough injustice to warrant investigation. Mr X could reasonably take court action in future if he were to believe road vibration was damaging his property. He could also reasonably take court action if he believes the road’s condition is unsafe. It is unlikely we could achieve more than the Council is already doing. The law prevents us considering how the Council is using public money here. For these reasons we shall not investigate whether the Council is at fault.

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Investigator's decision on behalf of the Ombudsman