Summary: We will not investigate Mr C’s complaint about highway drainage. This is because it is not unreasonable to expect Mr C to take the matter to court if it remains unresolved.

The complaint

1. The complainant, Mr C, complained that the highway drainage is not working, causing flooding. He said the flooding makes the access to and from his property unsafe.

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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. 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)
4. 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

5. I have considered the information Mr C provided. Mr C has had an opportunity to comment on my draft decision.

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What I found

6. Mr C told us he has been complaining for over 12 years but the Council is ignoring him. He said he had complained over 50 times. Mr C told us the driveway outside his property is ruined.
7. Mr C has been aware of the problem for more than 12 months so his complaint to us is late. But we have discretion to investigate late complaints if there are good reasons for us to do so. In some cases, we may exercise discretion if complainants can show they are suffering ongoing injustice.
8. We must consider whether Mr C could take the matter to court. 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.
9. There is a legal remedy available to Mr C if he considers the Council is not properly maintaining the road near his 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 Mr C to use this specific remedy the law provides for dealing with highway maintenance and disrepair issues. 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.
10. 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 the damage to Mr C’s property or to adjudicate on whether the Council has fulfilled its statutory obligations. So it would not be unreasonable for Mr C to follow the process provided in law to address the issue of maintenance of the road drainage if it remains unresolved. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts. We will not therefore exercise discretion to investigate this complaint.

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Final decision

11. We will not investigate this complaint. This is because it is not unreasonable to expect Mr C to take the matter to court if it remains unresolved.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman