Summary: We will not investigate Mrs B’s complaint about the way the Council responded after she experienced flooding to her home. This is because it would not be unreasonable to expect her to go to court if her complaint remains unresolved.

The complaint

1. The complainant, Mrs B, complained about the way the Council responded after she experienced flooding to her home in August 2020.
2. Mrs B told us her mental health was affected as a result of what happened, she had to move out of her home because of flood damage and she is living in fear the flooding will happen again every time it rains.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I have considered the information Mrs B and the Council provided. I have given Mrs B an opportunity to comment on my draft decision.

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What I found

7. When Mrs B informed the Council about the flooding, she told us the officer she spoke to gave her incorrect information. The Council has apologised for the advice the officer gave and for any inconvenience this caused to Mrs B. It told her about the action the officer’s manager would take. It is unlikely we could achieve significantly more for Mrs B if we investigated this part of her complaint.
8. Mrs B told us she has had to seek updates from the Council for four months. She said all she wanted was small repairs to the pavement and to know who is responsible for the flooding. In October 2020 she contacted the Council to report further surface water flooding to her property. She asked the Council to repair the pavement. She said she had made a complaint to her MP.
9. Part of the remedy Mrs B is seeking is for the Council to accept responsibility for the flooding and to offer compensation. We consider complaints about a council’s administrative actions. But disputes over liability and the merits of claims for financial loss are a matter, ultimately, for the courts. We cannot rule on responsibility for Mrs B’s damage and financial losses. If this issue is not resolved through insurers, it is therefore not unreasonable for Mrs B to make a claim for compensation by taking legal action through the courts.
10. In November 2020 the Council told Mrs B its highways service had arranged a camera survey and cleaning of a highway surface water drain, including the section in front of her property, to identify any issues and to rectify any found.
11. In January 2021 the Council told Mrs B it had planned to do work to the pavement before Christmas but it was placed on hold because of other priorities. The Council then did some work but Mrs B complained that this only consisted of the replacement of two kerb stones. She told the Council the pavement and other damaged kerbs had not been repaired. The Council has told us it is considering this issue.
12. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to carry out repairs where necessary. Although the Council’s duty to maintain public highways is set out in law the level of maintenance, and threshold for repairs is not. It is therefore open to interpretation.
13. We cannot interpret the law to say the Council has failed to fulfil its duties under the relevant legislation. We have no powers to order the Council to carry out maintenance work Mrs B believes is necessary. Section 56 of the Highways Act 1980 provides a specific alternative remedy for people who wish to take action about highway disrepair. If the pavement disrepair Mrs B has reported remains unresolved, she may serve notice on the Council and, if it does not act, she may apply to the court for an Order requiring it to carry out repairs within a reasonable period. Only the courts may decide whether the Council has fulfilled its statutory obligation so, if Mrs B wishes to pursue this matter, it would be reasonable for her to follow the process set out above. Also, section 58 of the Highways Act 1980 gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove the right of the Council to use that defence by investigating Mrs B’s complaint.

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Final decision

14. We will not investigate this complaint. This is because it would not be unreasonable to expect Mrs B to go to court if her complaint remains unresolved.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman