Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mrs Y to approach the court about the issue, who are better placed to deal with the complaint.

The complaint

1. Mrs Y complained the Council has failed to act to properly maintain the surface of the road near her home, which she says is in poor condition with water pooling and weeds growing along it. She is also unhappy with the responses she has received from the Council to her complaint.

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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 Mrs Y provided and 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, depending on their classification 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. Mrs Y may use this process to try to get the Council to repair the road in the places she believes it is in disrepair, such as where water is pooling. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. 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 Mrs Y to be expected to use her right to go to court about this matter.
9. Further, 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, so it is better placed than us to consider the complaint. We will therefore not investigate.
10. As we are not investigating the substantive issue, it is not a good use of public funds to investigate how the Council dealt with Mrs Y’s complaint. We will not investigate.

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Final decision

11. We will not investigate Mrs Y’s complaint because it is reasonable to expect Mrs Y to approach the court about the issue, who are better placed to deal with the complaint.

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Investigator's decision on behalf of the Ombudsman