Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to do further works on a public footpath next to her house. Section 56 of the Highways Act 1980 Act provides Mrs X with an alternative court remedy to test the Council’s duty to repair the footpath, then apply to the court for an order for the Council to carry out repairs if that duty is confirmed. Mrs X’s claim of damage to her driveway is one of Council negligence. She may ask the Council to refer the claim to its insurers. If dissatisfied with the outcome, we would expect her to go to court, because only courts can rule on issues of negligence. We will not investigate Mrs X’s complaint about the Council’s complaint process because we do not intend to investigate the core issue giving rise to the complaint.

The complaint

1. Mrs X complained the Council has:
1. failed to take action to resolve ongoing drainage problems with a public footpath next to her house;
2. delayed in responding to her complaints.
2. Mrs X says water from the path is damaging her tarmac driveway. She says the Council’s failure to respond and act is making her ill, causing her distress, anxiety, worry and depression. Mrs X says the water collecting on the path is also a health and safety issue for its users and has caused some people to almost fall over.
3. Mrs X wants the Council to:
• do work to find where the excess water is coming from;
• install further drainage to allow the path to dry and prevent water going on to her property.

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The Ombudsman’s role and powers

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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended)
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mrs X and the Council;
• issued a draft decision, inviting Mrs X to reply, and considered her response.

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What I found

7. Mr X lives in a house with a public footpath running down one side. The Council and the water company did work in 2019 to prevent groundwater flowing off the path on to Mrs X’s driveway. Mrs X says this worked for a short time but has stopped working. She says water pools on the path, and also flows on to her property from the path, damaging her driveway. The Council has added the matter to its list of sites to investigate.
8. The Highways Act 1980 (‘the 1980 Act’) places a duty on highway authorities to maintain public highways. This duty extends to drains running under the highway. We would expect councils to routinely monitor the state of highways for which they are responsible and carry out repairs where they consider them necessary.
9. The law sets out the Council’s duty to maintain public highways, but does not set out the level of maintenance, frequency of inspections and threshold for repairs. It is therefore open to interpretation. We cannot interpret the law to say the Council has failed to fulfil its legal duty to maintain the footpath, as only a court can make that determination.
10. However, Section 56 of the 1980 Act provides Mrs X with an alternative court remedy for this issue. She can test the Council’s repairs duty by serving notice on it under Section 56 of the 1980 Act. If the Council confirms it is responsible for the path, Mrs X can then apply to court for an order for the Council to carry out repairs. She may also ask the court as part of this process to consider a claim for damages to her property resulting from the Council’s alleged failure to properly maintain the path.
11. At its core, Mrs X’s complaint is that the Council’s decision not to do further work to the path means it is neglecting the path, which is directly resulting in water damaging her personal property. Mrs X may ask the Council to refer a claim for that damage to its insurers, asking for it to be considered by including repair costs. This matter has not yet been considered by the Council’s insurers.
12. If Mrs X is not satisfied with the response she receives to her claim from the Council’s insurers, it would be reasonable for her to take that claim to court because claims of damage to a person’s property due to negligence are matters for the courts to decide. We cannot make such legal rulings.
13. Mrs X has complained about the way the Council has dealt with her complaint. We consider 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. This limitation applies here so I will not investigate this part of Mrs X’s complaint.

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Final decision

14. We will not investigate this complaint. This is because:
• Section 56 of the 1980 Act provides Mrs X with an alternative court remedy to test the Council’s duty to repair the footpath, then apply to the court for an order for the Council to carry out repairs if its repair duty is confirmed;
• Mrs X could also make a claim against the Council’s insurers for the alleged negligence in maintaining the public footpath;
• if dissatisfied with the outcome of an insurance claim, Mrs X could take her negligence claim to court, which is the body empowered to make findings on such legal matters;
• we will not investigate a council’s complaint process in isolation, where we do not intend to investigate the core issue giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman