Devon County Council (26 007 570)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 22 Jul 2026
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council’s maintenance of a road because it is reasonable for Mrs X to go to court.
The complaint
- Mrs X complains the Council failed to properly investigate and resolve her concerns about highway drainage. She says the road outside her property floods, impacting her access and means of egress from her property and renders the road impassable. She believes the drains serving the highway are blocked but the Council has refused to clear them. She also suggests the existing drains are not sufficient to deal with the volume of water on the road.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered information provided by the complainant and the Council.
- I considered the Ombudsman’s Assessment Code.
My assessment
- The Council’s duty to maintain the public highway is set out in S41 of the Highways Act 1980. S61 of the Act gives the Council the power to improve the highway but this is a power rather than a duty.
- Caselaw has established the duty to maintain the public highway includes a duty to properly maintain the drains which serve it. If therefore Mrs X believes the Council has failed to properly maintain the drains it would be reasonable for her to follow the process set out at S56 of the Act. This allows Mrs X to serve notice on the Council claiming the road is out of repair and, if the Council accepts responsibility for it, she may apply to the Magistrates’ court for an order requiring the Council to act.
- Only the courts can decide whether the Council has maintained the highway properly and I have seen nothing to show it would be unreasonable for Mrs X to follow the process referred to above.
Final decision
- We will not investigate this complaint because it is reasonable for Mrs X to go to court.
Investigator's decision on behalf of the Ombudsman