Summary: We will not investigate Mr X’s complaint about a faulty drain in the road outside his property. This is because it would be reasonable for Mr X to take the matter to court.

The complaint

1. The complainant, Mr X, complains the Council has failed to take action to deal with a faulty drain outside his house. He says the drain flooded his garage in September 2023 and he is concerned about the impact of any future flooding on his house insurance.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

7. The Highways Act 1980 places a duty on the Council to maintain public highways. Caselaw has established this duty extends to the drains which serve and run beneath the highway. The Act also allows councils to carry out improvements to the highway and drainage infrastructure but there is no absolute duty for it to do so.
8. Mr X says the drain outside his property sits above the level of the highway and does not therefore drain water effectively from the road surface. The Council has agreed to visit Mr X’s property to look at the drain but it suggests that the issue was the result of a large amount of rainwater overwhelming the capacity of the drainage system. It also says it does not currently have sufficient funding to address this and Mr X confirms it is only his property and that of his neighbour which are affected.
9. We cannot say the Council must prioritise the issue with the drain to protect Mr X’s property from further flooding. Mr X suffered damage to his property and if he believes the Council is responsible for this it would have been reasonable for him to make a claim against it at court. He has now claimed for the damage from his insurer and it is for his insurer to decide whether to pursue the Council for reimbursement of the claim.
10. Ultimately only the courts can decide whether the highway is in disrepair and whether the Council has a duty to fix the issue. If Mr X believes it does then it would be reasonable for him to use the process set out at Section 56 of the Highways Act 1980. This allows him to serve notice on the Council and apply to the court for an order requiring it to carry out repairs. This is not an outcome we can achieve.

Back to top

Final decision

11. We will not investigate this complaint. This is because it would be reasonable for Mr X to take the matter to court.

Back to top

Investigator's decision on behalf of the Ombudsman