Summary: The Ombudsman will not investigate Mr X’s complaint that water from the highway has caused damage to his property. This is because Mr X could bring a court claim against the Council and it is reasonable for him to do so.

The complaint

1. Mr X complains water from the highway has caused damage to his property. He says the Council owned drain in the highway outside his home does not remove the water properly. He says the water flows onto his property causing sink holes and damage to his drive.

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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)
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered the information provided by Mr X in his complaint.
6. I sent a copy of my draft decision to Mr X, who had an opportunity to comment on it.

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What I found

Background

7. Mr X says his drive has suffered extensive damage due to water flowing from the highway. He says the drain in the road outside his home is higher than the lowest part of the road and does not take away the water that runs down the road.
8. Mr X complained to the Council in August 2019 about the drain and the damage he says it has caused. Mr X says the Council has ignored him and does not accept that it has caused the damage.
9. Mr X says he has had to spend over £7,500 in repairs.
10. The Council has passed Mr X’s claim to its insurers who, according to the Council, have not yet decided the claim.

Analysis

11. Mr X’s complaint is essentially that the Council has been negligent by not keeping a road in good condition and this has caused damage to his property.
12. The law says we cannot normally investigate a complaint when someone could take the matter to court. If the Council’s insurers refuse Mr X’s claim, he can bring a court claim against the Council for negligence.
13. We have discretion to set aside this rule where we decide there are good reasons. I have decided not to exercise discretion in this case because:
• negligence claims are generally best decided by a court;
• the amount of damages Mr X seeks would be more appropriately decided by the courts; and
• it is reasonable to expect Mr X to start a court claim for the damages he seeks.
14. Although Mr X also complains about the delay in the insurer’s considering his claim, we would not normally investigate issues with complaints handling where we are not investigating the claim itself.

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Final decision

15. The Ombudsman will not investigate this complaint. This is because Mr X could bring a court claim against the Council and it is reasonable for him to do so.

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Investigator's decision on behalf of the Ombudsman