Kent County Council (21 012 155)

Category : Transport and highways > Highway repair and maintenance

Decision : Closed after initial enquiries

Decision date : 22 Dec 2021

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the flooding to the complainant’s property. This is because there is not enough evidence of fault in the Council’s decision-making process to justify investigating and it would not be unreasonable to expect Mr B to go to court to pursue a claim for damage and loss.

The complaint

  1. The complainant, Mr B, complained that the Council has gone back on its word that it would take measures to stop the flooding of his property due to insufficient highway drainage.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)
  3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.(Local Government Act 1974, section 24A(6))
  1. We 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. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

  1. I considered information provided by the complainant.
  2. I considered the Ombudsman’s Assessment Code.
  3. Mr B has had an opportunity to comment on my draft decision. I considered his comments before making a final decision.

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My assessment

  1. In his correspondence with the Council Mr B said there had been several promises of additional drainage to address the flooding he experienced. But, after visiting the site, considering its history, investigating options and carrying out a risk assessment, the Council told Mr B it had decided the road did not meet its intervention criteria for highway drainage improvements. The Council said this was because of the significant level of investment that would be required to resolve flooding that does not result in a significant risk to highway safety or the internal flooding of habitable property.
  2. Mr B told us, to put things right, he wants the Council to install the bund and wall it originally promised and to pay compensation for the impact on his health. He said, despite the Council’s promises, it has done nothing that would stop the flooding in the future. Mr B told us the Council has only recently arranged repairs to the drainage. He said, if the Council had acted sooner, this would have stopped damage and further damage from occurring. Mr B said the Council has not treated him fairly because it went back on its promise to take measures at his property but it has carried out the same measures for one of his neighbours. He said his evidence clearly shows the flooding to his property came from the highway. He does not consider the Council has investigated the drainage issues fully or done everything it can to stop further flooding in the future.
  3. The law puts a duty on councils to maintain the highway (including drains) for highway users. Councils do not, however, have a duty to carry out improvements to the highway. The law does not set out a standard or frequency of maintenance. Councils have their own policies and criteria about how they respond to highway maintenance issues. It is not fault for councils to apply those policies. It is for the Council, not the Ombudsman, to reach a judgement on whether a road meets its highway intervention criteria. In this case the Council has considered the information Mr B presented and other relevant matters. There is not enough evidence of fault in the Council’s decision-making process to justify investigating this complaint.
  4. Mr B told us his property has been damaged and his health affected because of the Council’s failure to take action. Mr B can pursue an insurance claim against the Council. If this is unsuccessful he can consider taking action through the courts. It would not be unreasonable to expect him to do this because liability for damage and harm is a legal matter.

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Final decision

  1. We will not investigate Mr B’s complaint because there is not enough evidence of fault in the Council’s decision-making process to justify this and it would not be unreasonable to expect Mr B to go to court to pursue a claim for damage and loss.

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Investigator's decision on behalf of the Ombudsman

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