Summary: We will not investigate this complaint about the Council not maintaining the highway outside the complainant’s home. There is nothing to suggest fault by the Council and the complainant has remedies she can seek in court.

The complaint

1. The complainant, who I refer to here as Mrs B, has complained the Council is not properly maintaining the highway outside her home. She says this has resulted in flooding that has damaged her property.

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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’, which we call ‘fault’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
5. 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’.
6. We do not provide a right of appeal and cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

7. I considered information provided by Mrs B, which included the Council’s response to her concerns, I also considered our Assessment Code.

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My assessment

Maintaining the highway

8. The Council has not ignored Mrs B’s concerns. It has explained how it assesses and priorities reported issues. The Council has identified work it considers necessary. It is for the Council to decide what work it should carry out and I have seen nothing to suggest fault in how it has done this.
9. Further, 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.
10. If Mrs B considers the Council is not keeping the road in repair, she has the right to take her complaint to court. 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.
11. I consider it would be reasonable for Mrs 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.

Damage to property

12. Regarding damage to her property, Mrs B’s complaint is in effect the Council has been negligent. Negligence is a legal matter which the courts have the power to deal with. We cannot decide whether a council has been negligent.
13. We would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through their insurers. I consider the restriction I describe at paragraph 3 applies and so we will not investigate this part of Mrs B’s complaint.

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Final decision

14. We will not investigate Mrs B’s complaint because we are unlikely to find fault and she there are remedies in court it is reasonable for her to seek.

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Investigator's decision on behalf of the Ombudsman