Summary: We will not investigate this complaint about the Council’s actions after Ms Y reported water coming onto a highway from an adjacent property. This is because the law says we cannot normally investigate a complaint when someone could take the matter to court, and I see no good reason why Ms Y could not pursue her claim there.

The complaint

1. Ms Y complained that the Council did not act on her report of water coming on to a highway from a nearby property. Ms Y says that the Council’s failure to act caused her daughter to be involved in a road traffic accident.

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The Ombudsman’s role and powers

2. 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

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

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My assessment

4. Ms Y formally complained to the Council about water coming on to a highway from a nearby property in January 2025.
5. The Council considered Ms Y’s complaint at both stages of its two-stage complaints procedure.
6. The Council said it was not at fault for the following reasons.

• the Council is not responsible for water coming from a property not owned or maintained by it
• the road had been gritted on several nights in the build-up to the road traffic accident
• its enforcement services had been in contact with the third party who was responsible for the water.

7. A highway authority has a duty to make reasonable arrangements to get rid of water which has fallen directly onto a highway. However, it has no duty over water which has run onto the highway from surrounding land. An authority can serve a notice to a landowner (under the Highways Act 1980 s163) requiring him/her to construct or maintain channels, gutters or drainpipes to prevent water flowing onto the footway of the highway (but not the highway itself.)
8. 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).
9. I will not investigate Ms Y’s complaint the Council is liable for her daughter’s accident. Ms Y has an alternative remedy to pursue her claim through the Council’s insurers and then court if required, and it would be reasonable in the circumstances to expect her to use this right. Only a court can decide whether:

• the authority should have dealt with the problem before it caused the complainant harm;
• the complainant should have taken steps to avoid the harm.
• the Council is liable to pay damages for any loss or injury.

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Final decision

10. We will not investigate Ms Y’s complaint because she has an alternative remedy through the courts, and it is reasonable to expect her to use this remedy.

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Investigator's decision on behalf of the Ombudsman