Summary: We will not investigate this complaint about highway drainage because there is another body better placed to deal with the complaint.

The complaint

1. Mr Y complained the Council has failed to repair the road drainage outside his property. Mr Y says this has led to his driveway being repeatedly flooded, causing damage to his property.

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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 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

4. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

5. Mr Y says his property has been damaged as a result of the issue, which he says the Council has failed to repair. He says the cost to rebuild his driveway is considerable and wants the Council to accept responsibility for this. This is a potential negligence claim.
6. 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.
7. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to his home and driveway, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts. We will not investigate this complaint.
8. Further, if a person considers that a highways authority has failed to maintain a highway it is responsible for, including its 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. Mr Y may use this process to try to get the Council to repair the drainage along his road. 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 Mr Y to be expected to use this right to go to court about this matter.
10. Further, 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 Mr Y’s complaint because there is another body better placed to deal with the complaint.

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Investigator's decision on behalf of the Ombudsman