Summary: We will not investigate Mr X’s complaint about the Council’s failure to properly clean/maintain the drains in the road outside his house. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to clear the drains running underneath the road by his house, resulting in flooding and damage to his property.

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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 reviewed Mr X’s complaint and the Council’s response. I shared my draft decision with Mr X and considered his comments.

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What I found

5. Mr X has reported blockages to the drains in the road outside his property over several years. He complains the Council has not done enough to resolve the problem and says that as result the road floods and this has caused damage to his property and his neighbours’.
6. The Highways Act 1980 places a duty on highway authorities to maintain public highways. This duty extends to drains running under the highway. We would expect councils to routinely monitor the state of highways for which they are responsible and to carry out repairs where they consider it necessary. Although the law sets out the Council’s duty to maintain public highways, the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation.
7. We cannot interpret the law to say the Council has failed to fulfil its duty and 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. He may also ask the court to consider a claim for damages to his property resulting from the alleged failure to properly maintain the road.
8. The courts are better placed to deal with this issue and I have seen nothing to suggest it would not be reasonable to expect Mr X to use the alternative remedy available to him. I will not therefore exercise our discretion to investigate this complaint.

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Final decision

9. We will not investigate this complaint. This is because it would be reasonable for Mr X to go to court.

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Investigator's decision on behalf of the Ombudsman