Summary: We will not investigate Mr X’s complaint about highway maintenance. This is because the Courts are better placed to consider the complaint.

The complaint

1. Mr X complains that, since September 2023, the Council has failed to repair a collapsed highway drain near his property. Mr X complains the lack of adequate highway drainage causes rainwater to flood and damage his home. Mr X says the Council has provided misleading information and repeatedly avoided its legal responsibility to resolve the issue. He says the Council has been negligent. Mr X thinks the Council should fix the collapsed drain.

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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 says his property has been damaged by flooding caused by a nearby collapsed highway drain, which he says the Council has failed to repair. He wants the Council to accept responsibility for this and fix the drainage problem. This is a potential negligence claim.
7. The legislation from which the Ombudsman takes its power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. These are legal claims which may only be determined by insurers or the courts.
8. We cannot make decisions about liability or award damages. Consequently, any claim for damages, such as costs for repairs to his home, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr X to pursue his claim through either the Council or the courts. We will not investigate this complaint.
9. Further, if a person considers that a highways authority has failed to maintain a highway it is responsible for, including its drainage, 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. Mr X may use this process to try to get the Council to repair the drainage along his road. 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 Mr X to be expected to use this right to go to court about this matter.
11. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Mr X says the Council has not met this legal duty. 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.
12. As we are not investigating the substantive issue in this complaint, it is not a good use of public funds to investigate how the Council responded to and handled Mr X’s complaint. We will therefore not investigate this.

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Final decision

13. We will not investigate Mr X’s complaint about highway maintenance. This is because the Courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman