Summary: We will not investigate this complaint about a highway disrepair matter. This is because it would have been reasonable for Mr X to serve notice on the Council and take the matter to court.

The complaint

1. Mr X complains the Council failed to comply with its duty under the Highways Act 1980 to properly maintain the public highway. He says he reported issues with the drains serving the highway as far back as August 2021 but the Council failed to properly investigate or resolve the issue. He says that as a result the road and pavement have flooded, causing issues for his property, and he has had to spend more than £2,000 to address these issues.

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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 Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. The definition of a highway includes the pavement running alongside a road and any drains running underneath it.
6. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, frequency of inspections and threshold for repairs is not.  It is therefore open to interpretation.
7. Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. Where a person believes a highway authority has failed to comply with its Section 41 duty they may serve notice on the Council and, if the Council does not carry out the repairs they consider necessary, they may apply to the magistrates’ court for an order requiring it to act.
8. It is not for us, several years after Mr X’s initial report, to seek to interpret the law and say the Council failed to comply with its duty or that it should have carried out works sooner. It therefore follows we cannot hold the Council responsible for the costs Mr X says he has incurred to deal with the flooding on his road.
9. Had Mr X felt the Council had failed to properly investigate the flooding issue and carry out the necessary repairs to ensure the road remained reasonably passable for traffic, it would have been reasonable for him to use the process set out at Paragraph 6 above. Mr X may also have made a claim against the Council at court for any damage he believed resulted from the issue.
10. I have seen no evidence to show it would not have been reasonable for Mr X to use this process and I will not therefore exercise my discretion to investigate this complaint.

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Final decision

11. We will not investigate this complaint. This is because it would have been reasonable for Mr X to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman