Summary: We will not investigate this complaint about highway repair and maintenance. This is because the matter is better dealt with by the courts and it is reasonable to expect Mr Y to go to court about the matter.

The complaint

1. Mr Y complains the Council has wrongly said a roadside drain near his home is his responsibility and has therefore refused to carry out work to stop ongoing flooding of his property. He is also unhappy with how the Council has dealt with his complaint.
2. Mr Y says the issue has caused him significant worry and upset and has spent significant amounts of time trying to deal with 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

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

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My assessment

7. Mr y has complained about the Council’s failure to repair a drain near his home. Mr Y says it is on the highway and is therefore the responsibility of the Council to fix, but the Council says it is not on the highway, but on the verge, which it says it is not responsible for. The Council has said the drain is on private land and it therefore will not carry out repairs to a private drain.
8. 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.
9. If a person considers that 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.
10. Ms Y may use this process to try to get the Council to repair the drainage he says is on the highway. 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 highway. 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 the matter is better dealt with by the courts and it is reasonable to expect Mr Y to go to court about the matter.

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Investigator's decision on behalf of the Ombudsman