Summary: We will not investigate Mr X’s claim for damages against the Council and requests for the Council to carry out remedial work to both his property and the public highway. This is because it is reasonable to expect Mr X to go to court to decide if the Council is liable for the damage to his property. Also, Mr X can apply to the magistrates’ court for the Council to carry out remedial work on the public highway.

The complaint

1. In summary, Mr X is claiming damages from the Council after his property was flooded due to a blocked drain on the public highway. Mr X would also like the Council to carry out remedial works to both the highway and his property.
2. Further, Mr X complains the Council delayed in sending him a written response to his complaint.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I considered information provided by the complainant. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council has apologised for the delay in sending Mr X a written response to his complaint.
7. The Council has advised Mr X that its inspection identified a utility company as having caused a blockage and it would be pursuing a claim against the company (pending dry weather permitting video evidence of the blockage). It said it would share its video evidence with Mr X to take out his own claim against the Utility Company.
8. The Council as a local highways authority has a statutory duty to maintain roads. The Council is expected to routinely monitor the state of highways 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.
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. Mr X may use this process to try to get the Council to repair the road. I find it is reasonable for Mr X to do this. 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.
12. In terms of Mr X claiming damages, we would also normally expect him to pursue this via the courts, directly or through his insurers. This is because it is a negligence claim, and only the courts can decide if the Council is liable for the claimed damage. Further, unlike the Ombudsman, the courts have the power to award damages against the Council. We cannot recommend actions or payments that ‘punish’ the organisation. So, we will not investigate as it is reasonable to expect Mr X to take his claim to court.
13. With respect to the delay in responding to Mr X’s complaint, the Council has apologised and partly upheld Mr X’s complaint. We will not investigate. It is not a good use of public resources to investigate the complaints handling if we are not considering the main complaint.

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Final decision

14. I will not investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability for his claim.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman