Summary: We will not investigate this complaint about drainage because the courts are better placed to consider this complaint.

The complaint

1. Mr Y complained the Council has failed to install drainage along a footpath outside his home which keeps flooding, causing the path outside his property to be wet and slippery with algae.
2. Mr Y says the issue has caused damage to his property and his family regularly slip when trying to leave their home.

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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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

5. The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways, depending on their classification 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.
6. If a person considers that a highways authority has failed to maintain a highway, or here, a footpath and its drainage, it is responsible for, the person affected 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.
7. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown Court for such an order.
8. Mr Y may use this process to try to get the Council to make repairs to the footpath and install drainage. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use this right to go to court about this matter.
9. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. 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.
10. Mr Y has also said his property has been damaged by the flooding of the footpath and this has devalued his property as a result. The law says we are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his home, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts and the Council’s insurers, to which Mr Y may want to make a claim. We will not investigate this complaint.

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Final decision

11. We will not investigate Mr Y’s complaint because the courts are better placed to consider this complaint.

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Investigator's decision on behalf of the Ombudsman