Summary: We will not investigate this complaint about blocked drains on the highway. The court is better placed to consider the complaint, and it is reasonable to expect Mr X to exercise his right to go to court.

The complaint

1. Mr X complains the Council have failed to maintain drainage on a highway outside his home.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X reported surface flooding on the road outside his home. He says this is caused by blocked drains the Council have not been properly maintaining.
7. The Council say they have arranged for the drains to be inspected and cleared. They say the road is inspected regularly.
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. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. This includes maintaining drainage to prevent the carriageway from being obstructed by standing water.
10. If a person considers 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.
11. 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.
12. It is open to Mr X to use this process to try to get the Council to repair drainage to the highway.

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Final decision

13. We will not investigate Mr’s complaint. The court is better placed to consider the complaint, and it is reasonable to expect Mr X to exercise his right to go to court.

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Investigator's decision on behalf of the Ombudsman