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Devon County Council (20 011 502)

Category : Transport and highways > Highway repair and maintenance

Decision : Upheld

Decision date : 16 Aug 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to maintain the drains along the road outside her home since March 2018. The Council failed to inspect the drains near Mrs X’s home in line with its own policies and did not respond to Mrs X’s complaint about grit and grit bins. This caused Mrs X avoidable frustration. The Council agreed to apologise to Mrs X, provide information about grit bins and review its drainage inspection process. This was a suitable remedy so we completed our investigation.

The complaint

  1. Mrs X complained the Council failed to maintain the drains along the road outside her home since March 2018. She said this caused water from the road to flow onto her property, causing damage. She also said the Council failed to prevent ice forming on the roads in winter or provide grit for residents to use. As a result, she said she could not attend work and suffered other financial losses.
  2. She wanted the Council to properly maintain the drains and compensate her for the losses she said the Council caused.

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What I have investigated

  1. I have investigated whether the Council regularly inspected the road and drains outside Mrs X’s home from 2019 onwards, and if the Council provided enough information on its gritting policies in response to Mrs X’s complaints.
  2. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. 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 there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  5. Although Mrs X complained to the Ombudsman in early 2021, this was following earlier assurances by the Council it would resolve the problems. Given the seasonal effects on rainfall, I am satisfied Mrs X waited to assess the impact of any work undertaken by the Council complaint before complaining further. For those reasons, I am satisfied there are good reasons to consider matters 12 months before Mrs X’s complaint to the Council at the end of 2019.
  6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the information Mrs X provided and discussed the complaint with her.
  2. I considered the Council’s comments on the complaint and the supporting information it provided.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Highway drainage maintenance

  1. The Highways Act 1980 says local highway authorities have a duty to make reasonable arrangements to get rid of water which has fallen directly onto a highway. However, it has no duty over water which has run onto the highway from surrounding land.
  2. Highway authorities should carry out regular inspections to ensure their drains are not blocked, for example by vegetation growth.

Council’s highways policies

  1. The Council’s Highway Safety Policy says it will inspect roads such as that outside Mrs X’s home once a year. This includes inspecting and cleaning certain types of drains along rural roads at least once a year.
  2. The Council’s Winter Service and Emergency Plan says it will not normally provide salt or grit to members of the public directly. However, it may consider doing so in extended periods of cold weather or snow. The Council provides grit bins in areas not usually treated by the Council where particularly difficult conditions exist. Parish councils can ask for extra grit bins from the Council.

What happened

  1. Mrs X lives in a rural location in the Council’s area. She told the Council in 2018 that: the road was flooding during wet weather, the water had caused damage to her drive and the flooding iced over in winter preventing access to her property. She told the Council the drains along the road were often blocked and that she and her husband often had to clear them. She also told the Council there was no grit available during the winter.
  2. In late 2019, Mrs X formally complained to the Council because she said it had not taken any action to prevent the road flooding and it had not addressed her emails from 2018.
  3. In January 2020, the Council responded to Mrs X’s complaint. It apologised for the delays in responding to Mrs X’s emails and for not clearing the drains. It told Mrs X it would clear the edges of the road and clean the drains before the end of March 2020.
  4. In September 2020, Mrs X complained to the Council again that not all the promised work had been done. The Council said it would pass her email onto the relevant department but that it had changed its complaints policy in March 2020 to remove the second stage of its complaints process, so it told Mrs X her only alternative was to contact the Ombudsman.
  5. In early 2021, Mrs X emailed the Council saying no further work had been done. The Council told Mrs X it would not consider her complaint further and that she should complain to the Ombudsman, which Mrs X did in February 2021.
  6. In April 2021, the Council identified damage to one of the drains and repairs were required within three months. The Council completed the repairs in July 2021.

My findings

Highway and draining inspections

  1. The Council’s policy is to inspect and clean certain types of drains on rural roads, such as those outside Mrs X’s home at least once a year.
  2. Records provided by the Council show it inspected the highway each year between 2018 and 2020. Other records show it inspected two drains near Mrs X’s home in May 2018 and the other drain in December 2018. The Council said it also inspected and cleaned the drains in that area in August 2020, although is has no records of this.
  3. The Council has provided no evidence to show it inspected the drains near Mrs X’s home between May/December 2018 and August 2020. This is a gap of between 20 and 27 months which is not in line with the Council’s policy to inspect certain types of rural drains at least once a year. This was fault.
  4. However, a failure to inspect the drains would be unlikely, by itself, to cause an injustice. The Council would also need to have caused damage or inconvenience by failing to maintain the drains. For the reasons given at the end of this statement, I have not investigated Mrs X’s complaint about failure to maintain the drains. Therefore, I cannot say the Council’s failure to inspect the drains caused Mrs X an injustice.

Gritting and grit bins

  1. In her original complaint, Mrs X complained about the lack of grit or grit bins, however, there is no evidence the Council addressed this in any of its responses to Mrs X.
  2. The Council’s policy says it does not usually provide grit to the public. However, its policy says it may consider doing so in periods of extended cold weather. The Council has provided no evidence that it:
    • considered providing grit to Mrs X under the exceptions in its policy;
    • told Mrs X the locations of the grit bins it provides in her area;
    • told Mrs X how she could ask for a grit bin through her parish council; or
    • told Mrs X that this information was available on the Council’s website.
  3. The failure to do this was fault which caused Mrs X avoidable frustration.

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Agreed action

  1. Within one month of my final decision the Council will:
    • apologise to Mrs X for the avoidable frustration caused by not responding to the issue of grit/grit bins in her original complaint; and
    • provide her with locations of nearby grit bins and explain the process for asking for extra grit bins.
  2. Within three months of my final decision the Council will review its drainage inspection process to ensure it regularly identifies drains which have not been inspected in line with its policy and that it takes action to complete any missed inspections.

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Final decision

  1. I have completed my investigation and uphold those parts of Mrs X’s complaint I have investigated. The Council failed to inspect the drains near Mrs X’s home in line with its own policies and did not respond to Mrs X’s complaint about grit and grit bins. This caused Mrs X avoidable frustration. The Council agreed to apologise to Mrs X, provide information about grit bins and review its drainage inspection processes.

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Parts of the complaint that I did not investigate

  1. I have not investigated whether the Council failed to adequately maintain the drains and prevent damage to Mrs X’s property. This is because Mrs X could take court action for any damage caused by the Council’s negligence and the Ombudsman cannot normally investigate matters where someone can take the matter to court.
  2. Although we have discretion to investigate such matters if there are good reasons, I have decided not to exercise discretion in this case. This is because negligence claims are generally best left to the courts to decide and there are no reasons it would be unreasonable for Mrs X to take court action.
  3. I have also not investigated matters before 2019. The Ombudsman cannot normally investigate matters which happened more than 12 months ago. We have discretion to investigate such matters if there are good reasons. While I have decided there are good reasons to consider matters back to 2019, Mrs X could have complained sooner about issues from 2018 and I am not satisfied there are good reasons to consider events before then.

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Investigator's decision on behalf of the Ombudsman

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