Summary: We will not investigate Mrs X’s complaint about blocked drains on the road outside her property and the Council’s handling of her claim for damages resulting from flooding. This is because the complaint raises questions of negligence and liability and it would be reasonable for her to make a claim against the Council at court.

The complaint

1. Mrs X made a claim to the Council for damage to her property caused by poor drainage. She is unhappy with the Council’s handling of her claim and its delay in investigating and resolving the drainage issues. She says the Council’s poor highway maintenance and inadequate cleaning contributed to the extent of the damages. She is also frustrated with the Council’s online claim submission process.

Back to top

The Ombudsman’s role and powers

2. 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:

• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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)

Back to top

How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I also considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. The council is expected to routinely monitor highways it is responsible for and to carry out repairs where necessary. However, the level of maintenance, frequency of inspections and threshold for repairs is not set out in law and is open to interpretation.
8. We will not normally investigate complaints about damage to property resulting from a council’s alleged failure to meet its duty. This is because complaints of this nature are essentially about whether a council has been negligent.
9. Negligence claims, and interpreting the law around road maintenance, are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused harm and whether the council is liable to pay damages for the loss.
10. I have seen no good reasons to depart from this approach in Mrs X’s case, or to show that it would be unreasonable for Mrs X to pursue the matter at court. I will therefore not exercise my discretion to investigate this complaint. We cannot determine whether the drainage issues Mrs X complains about amounted to a breach of the Council’s legal duty or whether the Council is liable for the damages Mrs X claims.
11. While Mrs X is also unhappy with the way the Council handled her claim and investigated the drainage issues we will not investigate these issues separately. This is because these matters are too closely linked to the question of whether the Council has met its duty under Section 41 of the Highways Act and whether it may be liable for the damage to Mrs X’s property.

Claim forms

12. I acknowledge Mrs X’s frustration with the Council’s online claim submission process. However, this has not caused her a significant enough injustice on its own to justify us investigating.

Back to top

Final decision

13. We will not investigate Mrs X’s complaint. This is because her concerns are closely linked to issues of negligence and liability and it would have been reasonable for her to raise these at court as part of a claim for damages. The issues relating to the claim form have not caused Mrs X significant enough injustice to justify us investigating.

Back to top

Investigator's decision on behalf of the Ombudsman