Summary: We will not investigate this complaint about how the Council maintains the highway on a road near where Mrs X lives. This is because Mrs X has an alternative legal remedy that can consider her complaint and if necessary, require the Council to take action. Therefore, it would be reasonable to expect Mrs X to use this alternative remedy.

The complaint

1. Mrs X said she was affected by the deterioration of the road surface near her home. She said this was because of a lack of effective maintenance by the Council and wants the Council to take action to address the poor road surface.

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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)

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How I considered this complaint

3. I considered information provided by Mrs X and I considered the Ombudsman’s Assessment Code.

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My assessment

4. In this case, Mrs X said the road is not in a suitable state of repair and has reported this to the Council. The Council said it has periodically inspected the road and does not believe there is a need for any additional work, because there was no safety defect. It also said it was carrying out repairs across its area, based upon the priority of the need.
5. In such cases, where a person, considers that a highways authority has failed to maintain a highway it is responsible for, the person affected (Mrs X) 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.
6. Mrs X may use this process to try to get the Council to repair the road if she believes there is a requirement. There might be some cost to court action, however, that does not mean it is unreasonable to take court action. This is because it is they who could 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.

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Final decision

7. We will not investigate Mrs X’s complaint because there is an alternative legal remedy and under the circumstances, it would be reasonable to expect Mrs X to use it.

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Investigator's decision on behalf of the Ombudsman