Summary: We will not investigate Mrs B’s complaint that the highway drainage system is regularly blocked and is not maintained adequately. This is because there is no duty on the Council to carry out improvements and it is not unreasonable to expect Mrs B to go to court if the maintenance issue remains unresolved.

The complaint

1. The complainant, Mrs B, complained that the highway drainage system is regularly blocked and is not maintained adequately. Mrs B told us her home was flooded four years ago and has almost been flooded several times since then. She said this situation has had a negative impact on her family’s mental health.

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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 have considered the information Mrs B provided, including photographs, the Council’s responses to her complaint and her comments on my draft decision.

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What I found

5. To put things right Mrs B wants the Council to take the matter seriously and install a drainage system that is better able to cope with the volume of water. She told us she feels the Council must take responsibility for a lack of care of the drainage system. Until there is a better system in place, Mrs B said she would like the Council to maintain the current drains more regularly, so her property is no longer at risk of flooding.
6. When it responded to Mrs B’s complaint the Council explained its cyclical cleansing programme for highway gullies. It said it had dealt with her reports in accordance with its standard procedures.
7. The Highways Act 1980 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 to carry out repairs where they consider it necessary. Although the law sets out the Council’s duty to maintain public highways, the level of maintenance, frequency of inspections and threshold for repairs is not. It is therefore open to interpretation. There is no duty on highway authorities to carry out improvements to public highways.
8. There is a legal remedy available to Mrs B if she considers the Council is not properly maintaining the road near her home causing regular flooding. Section 56 of the Highways Act 1980 allows people to apply to the Magistrates’ Court for an order to force a highway authority to put a road into proper repair within a specified time. I consider it reasonable for Mrs B to use this specific remedy the law provides for disputes about highway maintenance. This is because a court has powers to instruct the Council to carry out any necessary work and set a timescale for completing it. The Ombudsman has no such powers.
9. We consider complaints about a council’s administrative actions. It is not our role to determine the cause of the flooding to the road and Mrs B’s home or to adjudicate on whether the Council has fulfilled its statutory obligations. So it would not be unreasonable for Mrs B and other people who may be affected to follow the process provided in law to address the issue of maintenance of the road if it remains unresolved. We will not therefore exercise discretion to investigate this issue.

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Final decision

10. We will not investigate this complaint. This is because there is no duty on the Council to carry out improvements and it is not unreasonable to expect Mrs B to go to court if the maintenance issue remains unresolved.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman