Summary: The Ombudsman will not investigate this complaint about a highway flooding incident and how the Council maintains the highway near the complainant’s home. He could not provide a different outcome even if he found fault in how the Council responded to the incident. The complainant can seek a remedy in court if she believes the Council is not maintaining the highway.

The complaint

1. The complainant, who I refer to here as Mrs B, has complained about how the Council responded to a highways flooding incident near her home in November 2019. She also says the Council fails to maintain the highway which leads to regular flooding.

Back to top

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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If we find fault by a council has caused injustice, we may suggest a remedy.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

6. I have considered what Mrs B said in her complaint and background information provided by the Council.

Back to top

What I found

The incident in November 2019

7. Mrs B says to called the Council to report a serious flooding incident on a road near her home. She believes this was the result of continuing failure by the Council to clear a culvert.
8. The Council says it sent contractors to the site who decided the road was passable. Mrs B says this is untrue and it was only intervention by her husband, at great risk to himself, which resolved the problem.
9. I have no reason to doubt Mrs B’s description of events on the day. However, even if we were to conclude there was fault in how the Council responded, I do not consider investigation would lead to a different outcome.

Maintenance of the highway

10. I have considered Mrs B’s wider concerns about how the Council maintains the highway.
11. Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
12. If Mrs B considers the Council is not keeping the road in repair, she has the right to take her complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
13. I consider it would be reasonable for Mrs B to serve a notice on the Council and take her complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Back to top

Final decision

14. I have decided we will not investigate this complaint for the reasons set out in paragraphs 9 and 13.

Back to top

Investigator's decision on behalf of the Ombudsman