Summary: We will not investigate this complaint about the Council’s maintenance of highway drains because it is reasonable for the complainant to go to court.

The complaint

1. Mr X complains the Council has not maintained highway drains. He says this repeatedly leads to flooding which risks damaging his property. Mr X wants the Council to provide evidence of the work it has done to address the concerns.

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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 considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. 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.
7. In response to Mr X’s concerns, the Council visited the area three times to inspect and maintain the drains. The Council is satisfied the drains are clear and working. The Council also advised Mr X to contact his water and sewerage provider about issues that were contributing to the flooding.
8. Mr X is unhappy with this outcome and does not agree with the Council’s assessment. Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. Mr X has the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring a highway up to standard. The Ombudsman cannot make such an order. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mr X to go to court.

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Final decision

9. We will not investigate Mr X’s complaint because it is reasonable for him to take court action.

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Investigator's decision on behalf of the Ombudsman