Summary: The Ombudsman will not investigate Mrs B’s complaint that she has experienced several incidents of flooding from the highway. This is because her complaint is late and there are not good reasons to exercise discretion because it is reasonable to expect Mrs B to use the alternative legal remedy available to her.

The complaint

1. The complainant, whom I shall call Mrs B, complains that she and her neighbours have experienced several incidents of flooding from the highway because the drains cannot cope with heavy rainfall. Mrs B says her living conditions are unbearable but it would be impossible to sell her house.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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

5. I have considered the information Mrs B provided, her comments on my draft decision, her 2015 and 2017 complaints to the Council and the Council’s responses to her complaints.

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What I found

6. To put things right Mrs B says the Council needs to work with the relevant bodies to improve the drainage capacity and pay to repair the houses affected. In the meantime she says the Council needs to provide a barrier system on the entrance to gardens of the affected houses and it should clean the drains more frequently.
7. In 2015 the Council told Mrs B it did not consider it was responsible for the flooding of her home that year. The Council told her she could refer her complaint to us. In 2017 the Council again said it did not consider it was responsible for the flooding. Mrs B says, at a meeting in 2017, the council admitted the drains were inadequate but there was no funding to provide a remedy. Mrs B has taken more than 12 months to bring her complaint to us. We can investigate late complaints if there are good reasons to do so. Mrs B says she did not bring her complaint to us sooner because the Council had agreed to carry out work and investigations and those affected wanted to resolve the problem through these channels.
8. Section 41 of the Highways Act 1980 states the Council has a duty to maintain highways maintainable at the public expense. This maintenance duty includes the highway drainage system which is part of the structure of the highway. It is for a court of law, ultimately to decide whether the Council has complied with its legal duty.
9. Section 56 of the Highways Act provides a statutory process Mrs B can follow if she believes the Council has failed in its duty to maintain the highway. She can serve notice on the Council to carry out repairs. Should it fail to do them, Mrs B may then apply to the magistrates’ court for an order requiring the Council to take action. A magistrates’ court order would be binding on the Council. Establishing whether a council has complied with its legal duty and responsibility for putting right flooding are legal matters. For these reasons it is reasonable to expect Mrs B to use the alternative legal remedy available to her.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because the complaint is late and there are not good reasons to exercise discretion because it is reasonable to expect Mrs B to use the alternative legal remedy available to her.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman