Summary: We will not investigate this complaint about the Council’s maintenance of gullies and a highway repair. This is because the court is better placed to consider the complaint and given the courts can instruct the Council to take action and we cannot, it is reasonable to expect Mrs X to exercise her right to go to court.

The complaint

1. Mrs X complained the Council failed to maintain and cleanse gullies appropriately, which led to flooding causing damage to a private road.
2. Mrs X said this has caused damage to the road and does not believe residents should pay for the repairs.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

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

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My assessment

7. Mrs X complained that following heavy rainfall, flooding caused damage to a private road by washing away the road surface. Mrs X said this was caused by the Council’s lack of maintenance and cleansing of gullies and believes it should pay for the repairs.
8. As a local highways authority, it is expected the Council will 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. The Ombudsman cannot tell the Council how often it should carry out highway maintenance.
9. Because Mrs X is unhappy with the highways authority’s maintenance of gullies and says this caused damage to a private road, she 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. Therefore, we will not investigate a complaint about the Council’s inspection and maintenance programme. The court can make an order and we cannot, therefore it is reasonable for Mrs X to use this alternative remedy.
10. Additionally, as to the damage caused to private property, which Mrs X believes the Council is liable for, only a court can decide whether the problem should have been dealt with by the Council before it caused damage or if the Council is liable to pay for any damages. This is not something the Ombudsman is able to do and this is why the complaint is better placed with the civil court for this matter.

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Final decision

11. We will not investigate Mrs X’s complaint because the court is better placed to consider it.

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Investigator's decision on behalf of the Ombudsman