Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to go to court about the matter and the court is better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to properly clean gully drains in his area and have carried out site visits when the drains are covered over by vehicles in the evening, rather than during the day.
2. Mr Y says this leads to water often left on the road and frustration that the Council is not properly investigating the issue.

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The Ombudsman’s role and powers

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)
4. 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 not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

5. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

My assessment

6. 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. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. Mr Y is unhappy the Council has carried out site visits at times of day, in the evening, when vehicles are parked along the road he lives on and are often covering the drains. A site inspection is not a requirement, albeit it is commonly used. The Council is responsible for making reasonable arrangements to get rid of water which has fallen directly onto a highway and it would be able to assess whether the road has flooded for example regardless of the time of day it is inspected.
8. The Council has inspected the road in the evening or late afternoon. It has not seen the issue Mr Y has reported from these inspections. It is up to the Council as the highways authority to monitor the state of the highway and act where necessary. In this case, while Mr Y may be dissatisfied, the Council has acted and formed a view based on what it has seen. As it is entitled to do this, there is not enough evidence of fault to justify investigation.
9. If a person considers that a highways authority has failed to maintain a highway it is responsible for, including the drainage of the highway, 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 Y may use this process to try to get the Council to carry out maintenance works on the roadside drainage if he feels the Council’s existing efforts have been insufficient. 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 Y to be expected to use his 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 drainage. 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

12. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to go to court about the matter and the court is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman