Summary: Mr X complained about the Council’s failure to resolve a highway drainage problem which he says has caused damage to his property when it overflows. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it would be reasonable for him to pursue his claim about liability in the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s highways contractor’s failure to resolve a blocked highway drain problem which causes it to overflow into his property during severe rain. He says this has resulted to damage to his driveway and outbuildings.

Back to top

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)

Back to top

How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. Mr X has been given an opportunity to comment on a draft copy of my decision.

Back to top

What I found

4. Mr X reported problems with flooding from an overflowing highway drain in spring 2019. The Council sent its contractor to jet the drain and repeated this when the problem recurred. Mr X contacted the Council in the autumn and complained about damage to his property from the drain which remained blocked.
5. In early 2020 the Council’s contractor visited the site again and reported to Mr X that there may be roots or other blockages in the drain and that it had dug further grips to remove water for the highway edges. It told him that it could offer a raised tarmac roll over to reduce water entering. Mr X says he wants the drainage problem to be resolved.
6. The highway authority has a duty to maintain the public highway for highway users and to prevent it from being obstructed by flooding. The highway duty does not extend to adjacent private property and any claims of negligence or damage from flooding and run-off are private legal matters. These are normally dealt with by insurers or, where liability is denied, by the courts. It is reasonable for Mr X to claim against the Council and to the small claims court if necessary.

Back to top

Final decision

7. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it would be reasonable for him to pursue his claim about liability in the courts.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman