Summary: We will not investigate this complaint about failure to prevent damage from highway flooding. The complaint is late, and we have seen no reason to investigate it now.

The complaint

1. The complainant, I shall call Mrs X, says the Council is failing to meet its statutory duty under the Highways Act 1980. She says water from the highway floods her property because of inadequate drainage.

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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)

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How I considered this complaint

4. I considered information provided by Mrs X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The law says a complaint should be made to the Ombudsman within 12 months of a person becoming aware of the event complaint of.
7. In 2020, the Council told Mrs X she could make a claim on the Council’s insurance if she believed it had been negligent and caused flooding to her property. If the insurance claim failed, she could make a claim in the county court. Therefore, as she was aware of the problem before 2020, Mrs X’s complaint is late.
8. I have considered whether to exercised discretion and investigate this late complaint.
9. Councils have a duty to maintain the highway (including drains) for highway users, not private property owners. Councils do not have a duty to carry out improvements to the highway. The law does not set out a standard or frequency of maintenance. It is for the Council, not the Ombudsman, to reach a judgement on whether highway drainage meets its duty to maintain the highway. In this case the Council has taken action which it considers provides acceptable drainage for the highway.
10. Mrs X told us her property has been damaged and her and her husband suffer from stress because of the Council’s failure to act. However, she can pursue an insurance claim against the Council. If this is unsuccessful, she can make a claim in the county court. It is not unreasonable to expect her to do this. Only the courts can determine whether the Council is liable for the damage, whether further work is necessary to maintain the highway drainage, and if compensation should be paid.

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Final decision

11. We will not investigate Mrs X’s complaint because it is late. And she can make a claim in the County Court if she believes the Council has been negligent.

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Investigator's decision on behalf of the Ombudsman