Summary: We will not investigate this complaint about highway maintenance and flooding because the courts are better placed to consider the complaint issues.

The complaint

1. Mrs X complained the Council has failed to prevent flooding on the pavement outside her home. She says this causes the footpath to become slippery and wet and occasionally flood. She says this causes her and her husband, who both have disabilities, difficulties, and risk of injury.

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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), as amended, section 34(B))

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How I considered this complaint

3. I considered information Mrs X provided and the Ombudsman’s Assessment Code.

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My assessment

4. Mrs X’s MP has written to us to explain Mrs X has been raising the issue of the pavement flooding for approximately three years and the MP has written to the Council about the matter several times.
5. Mrs X complained to the Council in April 2023. She explained that the local water company had confirmed water was running under the pavement and that it had potentially identified the source of the water. The Council responded, explaining the spring was on private land and was the responsibility of the landowner, and not the Council. It said the Council had no responsibility for the water where it ran underground. It added rights and responsibilities only began when water comes out of the ground and flowed into a channel, which was not on Council land either. It said it had a duty to prevent flooding but did not consider there to be a risk of flooding in the area. It said it would not act as a result. Mrs X then approached us in June.

Analysis

6. The Council has denied responsibility for the water as it says it is flowing from private land. It says this would make the owner of the private land responsible for the water and not the Council. The rights and responsibilities over land is a legal issue which can only be determined by a court where disputed. We are not able to decide such matters. Consequently, the courts are better placed to consider the complaint and we will not investigate.
7. Mrs X may also be able to take the matter to court using rights available under the Highways Act 1980. The Council as a local highways authority has a statutory duty to maintain adopted highways, which includes both roads and pavements. 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.
8. If a person considers that a highways authority has failed to maintain a highway it is responsible for, such as failing to ensure proper drainage, 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.
9. 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.
10. Ms X may use this process to try to get the Council to repair or otherwise maintain the highway, in this case, on the footpath. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Also, unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because the courts are better placed to consider this complaint.

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Investigator's decision on behalf of the Ombudsman