Summary: The Ombudsman will not investigate this complaint about the Council clearing gullies in the road near the complainant’s home. He is unlikely to find evidence of fault within his jurisdiction has caused the complainant significant injustice.

The complaint

1. The complainant, who I refer to here as Miss B, has complained she does not consider the Council is properly cleaning a gully in the road near her home. She has said her home has been flooded in the past because the gully was blocked and she fears this will happen again.

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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. 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’.
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 we would find fault;
• the fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered what Miss B said in her complaint which included the Council’s response to her concerns.

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What I found

Damage to property

7. Although Miss C has not specifically complained about damage to her property, I should explain this is not something we would consider.
8. A complaint about damage to property is, in effect, a complaint that a council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
9. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone complaining a council was responsible for damage to their property to seek a remedy in the courts, directly or through their insurers.

The Council’s legal duty to maintain the highway

10. 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.
11. If Miss B considers the Council is not keeping the road in repair, she has the right to take her complaint to court. This would include maintenance of the gully. 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.
12. I consider it would be reasonable for Miss 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.

Other fault and injustice

13. The Council has a programme of gully cleaning and has responded to Miss B’s reports of blockages, and those from other local residents. I understand she will be concerned about a repetition of the earlier incident. However, we are unlikely to find evidence of fault by the Council causing Miss B significant injustice, unrelated to any damage or potential damage to her property.

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Final decision

14. I have decided we will not investigate this complaint for the reasons given in paragraphs 12 and 13.

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Investigator's decision on behalf of the Ombudsman