Summary: We will not investigate this complaint about highway drainage because the courts are better placed to consider the issue and it is reasonable to expect Mr Y to go to court about the matter.

The complaint

1. Mr Y complained the Council failed to properly investigate flooding caused by water coming off the highway onto his property and has refused to consider the complaint at stage two of its complaint procedure.
2. Mr Y says this has left him without a proper review of the issue, the flooding unresolved and he has spent time dealing with the matter.

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The Ombudsman’s role and powers

3. 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))
4. 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)
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 says the drainage currently used for the highway outside his property is inadequate and unable to manage with the level of water on the road after rainfall. He says the current infrastructure lacks capacity to cope and does not have sufficient maintenance.
8. The Council as a local highways authority has a statutory duty to maintain adopted streets, including its drainage. A highway authority has a duty to make reasonable arrangements to get rid of water which has fallen directly onto a highway. However, it has no duty over water which has run onto the highway from surrounding land. The Council is expected to routinely monitor the state of highways and its drainage, 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. Mr Y may use this process to try to get the Council to carry out any maintenance needed for the drainage which currently is used outside his property. 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.
12. Mr Y has also said that water is discharges from the highway onto his property. In particular, he has complained about water flooding his property. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
13. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts.
14. As we are not considering the substantive matter, it is not a good use of public resources to justify how the Council did or did not respond to Mr Y’s complaint or the detail of that response. We will not investigate this.

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Final decision

15. We will not investigate Mr Y’s complaint because the courts are better placed to consider the issue 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