Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of a highway and its drainage, and its complaint responses. It is reasonable for Mr X to take the highways matter to court. It is reasonable for him to take any property damage claim to the Council’s insurer, then to the courts if required. We do not investigate councils’ complaint handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Part of the Council’s highway is next to Mr X’s land, which has experienced flooding. He complains the Council has:
1. failed to maintain its highway drain;
2. failed to properly investigate the cause of the flooding;
3. dismissed his evidence that the flooding is from highway run-off;
4. misinterpreted its highways duties;
5. failed to provide a full and reasoned response to his complaint.
2. Mr X says the unresolved highway drainage problems have had a direct and ongoing impact on his business. He says repeated flooding has damaged land and an important access track, disrupting vehicle movements, machinery access, and routine works. Mr X says the flooding has caused erosion and instability, increasing land maintenance costs and created safety risks for staff and contractors. He says his time has been diverted away from running his business to document damage, corresponding with the Council, and pursuing complaints, causing stress and financial loss.

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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)

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How I considered this complaint

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

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My assessment

5. 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.
6. We cannot decide whether the Council has maintained the highway properly or is liable for any damage to property due to any failure to repair its highway. Only the courts can make decisions on highway condition. The law also gives the Council the right to defend in court any claims against it of disrepair to its highway assets. We would not disregard or go behind that right by investigating those claims. It is therefore reasonable for Mr X to go to court on the highway matters complained of, and we will not investigate.
7. We understand Mr X made a property damage claim against the Council relating to the same highway and drainage issues several years ago, which the Council’s insurers rejected. We cannot determine legal liability for damage to property. It would be reasonable for Mr X to pursue any further damages claim with the Council’s insurers, then the courts if they reject his case, as only they can decide such claims.
8. We note Mr X also complains about the Council’s responses to his complaint. We do not investigate councils’ complaint handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. This limitation applies here so we will not investigate this aspect of the complaint.

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Final decision

9. We will not investigate Mr X’s complaint because:
• it is reasonable for him to take the highways matter to court; and
• it is reasonable for him to take any further property damage claim to the Council’s insurer and then to the courts if required; and
• we do not investigate councils’ complaint handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman