Summary: We will not investigate this complaint about highway repair and maintenance because it is reasonable to expect Mr Y to approach the courts, who are better placed to consider the issue.

The complaint

1. Mr Y complained the Council has failed to properly maintain the highway and its drainage near his property. He is also unhappy with how his complaint has been dealt with. Mr Y says the issue causes him inconvenience, especially when using the road as it floods and is in his view in a state of disrepair.

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The Ombudsman’s role and powers

2. 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)
3. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y in unhappy about the lack of maintenance of a road in his area, including relating to a blocked drain. Mr Y feels the Council ought to be responsible for the issues, particularly the drainage as it agreed to jet clean the drain in 2023. Mr Y says however it has refused to carry out the necessary work. The Council has said the drain is on private land and the road is unadopted and owned privately and it therefore is not responsible for the work Mr Y is seeking.
7. The Council as a local highways authority has a statutory duty to maintain adopted streets. In this instance there is a dispute over whether the road is adopted or not. This is a question partly of land ownership and responsibility, which the Ombudsman would not be able to determine and would be an issue for the courts to decide.
8. Where a road is adopted, 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. It can also consider whether the Council has classified the road correctly where this is disputed and can confirm whether or not the road has been adopted. The courts are therefore in a better position to decide the issues in this complaint.
9. There might be some cost to court action. However, that does not mean it is unreasonable. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to go to court about this matter.
10. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

11. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to approach the courts, who are better placed to consider the issue.

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Investigator's decision on behalf of the Ombudsman