Summary: We will not investigate this complaint about the Council’s failure to properly maintain the drains and gullies on his road. This is because Mr X has made a claim against the Council at court and if there are any drains which still remain blocked it would be reasonable for him to apply to the court for an Order requiring it to carry out repairs.

The complaint

1. Mr X complains the Council failed to properly maintain the drains and gullies serving the public highway along his road. He says this led to damage to his property and although the Council has now cleaned the drains, one remains blocked.

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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. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court but cannot investigate if the person has already been 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.  Highway authorities are expected to routinely monitor the state of highways for which they are responsible and to carry out repairs where necessary. 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.
6. Mr X says he suffered flooding to his property in late 2024, having reported blockages affecting the highway drains several months earlier. We cannot however investigate any complaint about the Council’s response to his reports or the blockages which resulted in the damage. This is because Mr X has made a claim against the Council for the damage at court.
7. Mr X reports there is still one drain on his road that is blocked, but we will not investigate this issue further because it would be reasonable for him to raise the matter at court.
8. We cannot interpret the law to say the Council has failed to fulfil its duty and we would therefore expect Mr X to use the process set out at Section 56 of the Highways Act 1980. This allows Mr X to serve notice on the Council and, if it does not act, he may apply to the court for an Order requiring it to carry out repairs. Only the courts may decide whether the Council has fulfilled its statutory obligation so if Mr X wishes to pursue this matter it would be reasonable for him to follow the process set out above. 

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Final decision

9. We cannot investigate Mr X’s complaint about the Council’s handling of the highway disrepair issue because he has made a claim against the Council for the damage to his property at court. We will not investigate Mr X’s complaint about the Council’ failure to properly clear the remaining drain because it would be reasonable for him to serve notice on the Council and take the matter to court.

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Investigator's decision on behalf of the Ombudsman