Summary: The Ombudsman will not investigate Mr X’s complaint the Council’s failure to properly maintain the highway. If Mr X believes the Council is liable for the cost of repairing damage to his property it would be reasonable for him to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council failed to properly maintain the public highway, causing damage to their property which will cost at least £10,000 to put right.

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The Ombudsman’s role and powers

2. 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

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

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What I found

4. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. The level and frequency of maintenance are not defined in law, so councils will approach the issue differently, based on their judgement. There is no requirement under this legislation for the Council to improve highways beyond their original state; just to maintain them to allow safe passage.
5. Mr X says the Council has failed to repair the highway outside their property for several years. As a result they say they have suffered damage to their property from flooding. They made a claim to the Council for the cost of putting right the damage but the Council declined their claim as it did not consider it was liable. Mr X complains about this decision and wants the Council to accept their claim and pay for the cost of repairs.
6. The Ombudsman will not investigate this complaint. It is not for us to decide disputed claims for property damage; if Mr X believes the Council is liable for the cost of repairs to his property it would be reasonable for him to take the matter to court. Only the courts may decide whether the Council is liable and whether it has an adequate defence against a claim and it would be wrong for the Ombudsman to deny it the opportunity to challenge Mr X’s claim through the proper process.

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Final decision

7. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman