Summary: Mr X complained about the Council’s failure to act on his report of blocked gullies near his home which is causing flooding of the highway and damage to his property from splashing by traffic. We should not investigate this complaint. This is because it is unlikely that we would find fault and it is reasonable to expect Mr X to raise any claim for damages through insurers and the courts, who are better placed than the Ombudsman to consider this.

The complaint

1. Mr X complains the Council has failed to act on his report of blocked gullies near his home which is causing flooding of the highway and damage to his property from splashing by traffic.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended
4. 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

5. 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.

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What I found

6. Mr X says the highway gullies and a roadside drain near his home frequently become blocked and this leads to pooling on the highway in heavy rain. Traffic splashes standing water and run-off onto his home causing damage from dampness.
7. He complained to the Council and it advised him that it has a programme to clear the gullies every 18 months. It says it is unlikely that it can resolve his problem as the property is close to the public highway and affected by the lie of the land. The Council has recently said it will enquire into discharge onto the highway from a drain on private land but will not amend its maintenance schedule.
8. The highway authority has a duty to ensure that the highway is kept unobstructed to highway users. It has no duty to owners of adjacent land or buildings and any claims of damage caused by run-off are private legal matters. Mr X could submit a claim against the council which its insurers would have to consider. If no liability is accepted, then it is reasonable for him to take the matter to the small claims court which is the body best place to determine claims of negligence.

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Final decision

9. We should not investigate this complaint. This is because it is unlikely that we would find fault and it is reasonable to expect Mr X to raise any claim for damages through insurers and the courts, who are better placed than the Ombudsman to consider this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman