Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating and the courts are better placed to deal with the complaint.

The complaint

1. Mr Y complained the Council has failed to investigate the cause of vibrations to his home coming from the road outside.
2. Mr Y says he is distress and deeply worried about the damage to his property as a result of the vibrations, which he says have not occurred in the previous 28 years he has lived in the property.

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The Ombudsman’s role and powers

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 not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information Mr Y and the Council 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 reasonably maintain and repair the highway so it is free of danger to all users using the highway in a way normally to be expected. This means the Council is expected to routinely monitor the state of highways, 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. It is for the Highways Authority to satisfy itself that the road is in a suitable condition.
7. Under the Environmental Protection Act 1990, Council do not owe a duty to investigate noise or vibration from traffic. Its duty, as a highways authority, is to reasonably maintain the highways so it is free of danger to all uses who use the highway in the way normally expected of them. Consequently, the Council is not required to investigate Mr Y’s property from vibrating due to traffic. We would therefore not find fault for the Council not continuing to investigate the vibrations Mr Y says are affecting his property.
8. In this case, the Council has fulfilled its duty to ensure safe maintenance of the highway by inspecting the road and, in line with its highway inspection manual, determined that any defect does not meet the levels required for an intervention. As the Council has acted to consider the issue against relevant criteria, there is no fault in the decision-making process. Therefore, there is not enough evidence of fault to justify investigating and we will not investigate
9. Further, Mr Y says his property is being damaged by the vibrations. Where Mr Y considers the Council responsible for and its actions (or lack of) to have caused damage to his property, this would be a potential dispute over liability for the cost of any repairs.
10. We are not able to decide liability or award damages. The law prevents us from investigating such issues or deciding liability. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or insurers. Mr Y would need to pursue a claim through either his home insurer, the Council’s insurer or the courts. We will not investigate this complaint.

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Final decision

11. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and the courts are better placed to deal with the complaint.

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Investigator's decision on behalf of the Ombudsman