Summary: We will not investigate this complaint about highway maintenance. This is because the courts are better placed to consider the complaint and it is reasonable for Mrs Y to approach the courts about the issue.

The complaint

1. Mrs Y complained the Council failed to carry out maintenance and repair work to the drainage along a nearby road, leading to flooding and damage to her property. She is also unhappy with how the Council responded to the complaint.

Back to top

The Ombudsman’s role and powers

2. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
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. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

How I considered this complaint

5. I considered information Mrs Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Mrs Y complained to the Council about the drainage in November 2022, particularly raising concerns about the levels of water on the road. The Council responded saying it had been aware of the problems and had been carrying out various types of investigation and works since February 2022. However, it had further plans to carry out works later in November.
7. Mrs Y was dissatisfied with the response and asked the Council to respond further. The Council said it felt it could not offer any further response at that time and referred MRs Y to us. Mrs Y approached us in January 2023.

Analysis

8. The Council as a local highways authority has a statutory duty to maintain adopted streets, including their drainage. The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
9. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway, including the repair or replacement of drainage.
10. If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
11. Mrs Y may use this process to try to get the Council to repair the drains. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mrs Y to be expected to use her right to go to court about this matter.
12. In relation to the damage to her property, the legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. These are legal claims which may only be determined by insurers or the courts.
13. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to her property, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. We will not investigate this complaint.
14. As we are not investigating the substantive issue about the drains it is not a good use of public resources to investigate how the Council dealt with the complaint. We will not investigate.

Back to top

Final decision

15. We will not investigate Mrs Y’s complaint because the courts are better placed to consider the complaint and it is reasonable for Mrs Y to approach the courts about the issue.

Back to top

Investigator's decision on behalf of the Ombudsman