Summary: We will not investigate this complaint about drainage because the court is better placed to consider the issues involved and it is reasonable to expect Mr Y to go to court about the matter. Further, as we are not investigating the substantive issue, it is not a good use of public resources to investigate how the Council dealt with the complaint.

The complaint

1. Mr Y complained the Council failed to prevent flooding to his property which he believes is caused by the drains on the highway, failed to act as a lead authority in a flooding matter and failed to respond to his complaint promptly.
2. Mr Y says the issue has led to his property flooding, an increase in his insurance premiums as well as frustration and upset.

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The Ombudsman’s role and powers

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)
4. 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, section 34(B))
5. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

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

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My assessment

8. 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. This includes ensuring drainage is in good repair. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
9. If a person considers that a highways authority has failed to maintain a highway 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.
10. 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.
11. Mr Y may use this process to try to get the Council to repair the roadside 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 her right to go to court about this matter.
12. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway drainage. 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.
13. Mr Y has also said his property was damaged due to the flooding. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
14. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his home or any loss due to an increase in insurance premiums, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either his insurer or the courts. We will not investigate this complaint.
15. Mr Y is also likely to need to include details of his complaint in any such legal action as the complaint would be inextricably linked to the legal issue. Further there is a dispute over which body, the Council or a third party, is responsible for the works which may be needed. Where there is a dispute, the Ombudsman cannot decide who is liable for the works, where the court can decide this. Consequently, the court is better placed to consider the complaint.
16. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. Consequently, we will not investigate how the Council dealt with Mr Y’s complaint.

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Final decision

17. We will not investigate Mr Y’s complaint because the court is better placed to consider the issues involved and it is reasonable to expect Mr Y to go to court about the matter. Further, as we are not investigating the substantive issue, it is not a good use of public resources to investigate how the Council dealt with the complaint.

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Investigator's decision on behalf of the Ombudsman