Summary: The Ombudsman will not investigate Mr C’s complaint that the Council has done and continues to do nothing to address the problems caused by excess water from the highway which reaches his property. This is because it is reasonable to expect Mr C to use the legal remedy available to him.

The complaint

1. The complainant, whom I shall call Mr C, complains that the Council has done and continues to do nothing to address the problems caused by excess water from the highway which reaches his property. He says some of the content of the Council’s responses to his complaint is inaccurate. Mr C told us, every time there is excess water, not only is his property flooded, but so is the road leading to it. He then has to clear away the thick mud, not only from his property, but also from the pathways outside his home.

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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 Mr C provided, including his photographs, his comments on my draft decision and the Council’s responses to his complaint.

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What I found

6. Mr C says he contacted the Council’s highways team in 2007, 2012, 2016 and again in 2019. In its final response to Mr C’s 2019 complaint the Council said it cannot remove totally the presence of water on the route. It said it could not confirm when cleansing work would be done, but in the meantime it would monitor the location during routine highway safety inspections.
7. Mr C says the Council does not seem to understand the root cause of the problem he has described. He believes the Council is the body responsible for putting things right. He has listed the work and maintenance he wants the Council to do.
8. Mr C has complained to us in time about the Council’s response to the problems he reported in 2019. But he has taken more than 12 months to bring his complaint to us about his contact with the Council in previous years.
9. 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.
10. Section 56 of the Highways Act provides a statutory process Mr C can follow if he believes the Council has failed in its duty to maintain the highway. He can serve notice on the Council to carry out repairs. Should it fail to do them, Mr C 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 Mr C to use the legal remedy available to him.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because it is reasonable to expect Mr C to use the legal remedy available to him.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman