Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s failure to properly maintain the drains in the road outside his house. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to properly maintain the public highway/drains near his home. As a result the road floods and water flows towards his property and into his garden.

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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 reviewed Mr X’s complaint, shared my draft decision with him and considered his comments.

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What I found

5. Mr X has reported issues with public drains on the highway for several years. He says the Council had made numerous attempts to unblock the drains but says these have not worked. He believes there may be an underlying issue stopping water from draining away and causing the road and his property to flood. He complained to the Council but was not happy with its response.
6. 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. Caselaw has established this duty extends to drains running beneath the highway and not just to its surface.
7. The Ombudsman will not investigate this complaint. If Mr X believes the Council has failed to properly maintain the drains at the top of his road it would be reasonable for him to serve notice on the Council under Section 56 of the Highways Act 1980 to carry out repairs. If the Council does not then resolve the problem he may apply to the court for an Order requiring it to act.
8. It is not for us to determine the cause of the flooding to the road or to adjudicate on whether the Council has fulfilled its statutory obligations, and I have seen nothing to suggest it would not be reasonable for Mr X to follow the process provided in law to address this issue. I will not therefore exercise the Ombudsman’s discretion to investigate this complaint.
9. While Mr X is also unhappy about the way the Council has dealt with his complaint, the courts have said that where we cannot investigate a complaint about the main or underlying issue, we cannot normally investigate related issues either. (R (on the application of M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin)). So, where the substance of a complaint is not subject to investigation, the Ombudsman does not investigate the Council’s handling of the issue in isolation.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr X to serve notice on the Council and take the matter to court.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman