Summary: We will not investigate Mr X’s complaint about the Council’s highway drain causing damage to his property and how it responded to his complaint. It would be reasonable for him to make a legal liability claim for damage to his property to the Council’s insurers and, if required, to take that claim to court. It is reasonable for Mr X to take to court any claim regarding the current standard of the highway. There is insufficient significant injustice to Mr X from the Council’s complaint process to warrant us investigating that issue.

The complaint

1. Mr X’s property borders the Council’s highway, a boundary marked by his fence. He complains the Council:
1. failed to properly maintain the highway drainage system next to his property;
2. only did the required maintenance once he complained;
3. failed to consider the delay to the repairs and the damage to his property when considering his complaint.
2. Mr X says the Council's failure to properly maintain the drainage has caused physical damage to his property. He says water on the highway flows onto his property and is sprayed onto his fence and land by passing vehicles, damaging his land and exposing and destabilising the fence footings. He says he faces the cost of remedial works to stabilise the land and repair or replace fence sections. Mr X worries heavy rainfall will cause more damage before the Council puts in a permanent solution. He says he has spent time and had inconvenience corresponding with the Council, escalating complaints, gathering evidence, and seeking quotations.
3. Mr X wants the Council to:
• acknowledge that scheduled drainage maintenance was missed and contributed to uncontrolled water discharge onto his property;
• reassess its liability for his property damage, taking account of the missed maintenance;
• pay him the cost of remedial works required to stabilise and shore up the fence post footings and rebuild the eroded bank;
• confirm that appropriate steps will be taken to ensure the drainage is properly maintained, to prevent recurrence.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. We provide a free service but must use public money carefully. We will not usually investigate a council’s complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

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How I considered this complaint

7. I considered information from Mr X and the Council, and the Ombudsman’s Assessment Code.

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My assessment

8. We understand Mr X may consider the Council’s handling of the highway matters complained of to be separate from any property damage issue. But the core of his complaint to us, issue a) above, is his claim that failures by the Council in its highway maintenance have led to damage to his land and fence. The outcome Mr X seeks from his complaint includes payment from the Council to make good the damage. We cannot separate out the Council’s administrative actions from Mr X’s claim that the Council should be held liable for that damage.
9. Mr X’s core complaint amounts to a claim of negligence by the Council in its highway maintenance which he considers has led to damage to his property. Mr X believes the Council is responsible and should pay for that damage. We cannot make findings of legal liability for property damage. Only an insurer or the courts can make such decisions. It would be reasonable for Mr X to pursue any damages claim with the Council’s insurers, then with the courts if they reject his case, as only they can decide such claims.
10. The Council says it has done highway works to resolve the drainage issue. But we note Mr X may remain concerned the drain is not fixed and that future rain will cause more damage to his property. Under Section 56 of the Highways Act 1980, Mr X has the right to apply to a Magistrates’ court for a repair order requiring the Council to take whatever action is needed to bring the highway up to standard.
11. As explained above, we cannot decide whether the Council is maintaining the highway properly or is liable for any damage to property due to a failure to repair its highway. Only a court can make those decisions. The law also gives the Council the right to defend in court any claims against it of highways disrepair. We would not disregard or go behind that right by investigating those claims. It is therefore reasonable for Mr X to go to court to get a finding on whether the Council’s highway meets the required standards.
12. Mr X also complains about the Council’s responses to his complaint at issues b) and c). We recognise Mr X spent some time and took steps to pursue matters with the Council during its complaints process. But that does not amount to such a significant personal injustice to warrant us investigating the Council’s complaints handling on its own, so we will not investigate this aspect of the complaint.

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Final decision

13. We will not investigate Mr X’s complaint because:
• it would be reasonable for him to make a legal liability claim for damage to his property to the Council’s insurers and, if required, to take that claim to court; and
• it is reasonable for Mr X to put before the court any claim regarding the current standard of the highway; and
• there is not enough significant injustice to Mr X from the Council’s complaint process to justify us investigating that part of the complaint.

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Investigator's decision on behalf of the Ombudsman