Summary: We will not investigate this complaint about drainage and highway maintenance because it is reasonable to expect Mrs Y to go to court about the matter, which is better placed to consider the complaint.

The complaint

1. Mrs Y complained the Council has failed to resolve a drainage issue which is causing her property to flood during heavy rain.
2. Mrs Y says this makes her garden unsafe for her young grandchild and is damaging her property which she cannot enjoy as a result.

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The Ombudsman’s role and powers

3. 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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 Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mrs Y has complained about the lack of action relating to the drainage belonging to the Council which disperses rainwater into her garden, causing it to flood. Mrs Y says this has disturbed her enjoyment of her home, makes her garden unsafe for her family and caused damage to her property.
7. The Council has investigated the issue but has not told Mrs Y when it will carry out work to the drainage or what work will be done. In the meantime, however, Mrs Y’s property remains at risk of flooding in heavy rain and has been damaged by the problem. This is her claimed injustice.
8. 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. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
9. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts.
10. Further, the Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. This includes to the drainage for the highway. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
11. 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, or in this case to the drainage underneath it.
12. Mrs Y may use this process to try to get the Council to repair the highway drainage. 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 Mrs Y to be expected to use her right to go to court about this matter.
13. 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

14. We will not investigate Mrs Y’s complaint because it is reasonable to expect Mrs Y to go to court about the matter, which is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman