Summary: We will not investigate Mr X’s complaint about a highway maintenance issue. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. Mr X complains the Council has failed to properly maintain the public highway outside his property. He says the level of the pavement is lower than that of the road, so it does not effectively drain water away from the highway. He says this has caused water to enter his property, affecting its value and causing damp and mould on his walls.

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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. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
6. We cannot interpret the law to say the Council has failed to fulfil its duty or to hold the Council liable for the damage to Mr X’s property. However Section 56 of the Highways Act 1980 provides an alternative remedy for this issue. Mr X may serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above.
7. Mr X may also ask the court to determine whether he is entitled to compensation for the damage he claims to his property, if he believes this is the result of the Council’s failure to maintain the highway.

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Final decision

8. We will not investigate this complaint. This is because it would be reasonable for Mr X to follow the process set out above by serving notice on the Council and, if necessary, taking the matter to court.

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Investigator's decision on behalf of the Ombudsman