Summary: We will not investigate this complaint about the Council failing to properly address highway drainage issues in the complainant’s area. It is reasonable to expect the complainant to use the available court remedies, and we are unlikely to be able to achieve anything more for him.

The complaint

1. Mr X complains the Council has failed to properly maintain the highway drainage system in his area, resulting in his property being flooded. This has affected his family’s mental health, as they are worried about the flooding happening again.

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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. We can 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. So, we do not start an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law also 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

5. I considered information provided by Mr X and the Council, which included their complaint correspondence. I also considered the Ombudsman’s Assessment Code.

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My assessment

6. The Highways Act 1980 places a duty on the Council to maintain public highways, including the drains which serve and run beneath them. But the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. I note the Council has taken action related to the drainage issues in Mr X’s area, including:
• Cyclical cleaning of gullies in December 2023 and September/October 2024
• Additional clearing/jetting of gullies and/or catch pits in April and August 2024 in response to reports of blockages
• Clearance of part of the ditch at the road junction near Mr X’s home.
• Initiating a section 19 (Flood and Water Management Act 2010) flood investigation
8. If Mr X considers this action is insufficient, he 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. If the highways authority does not respond in time or does not accept it is responsible for maintaining the highway, the person may apply to the Crown court for such an order.
9. 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 resolve the complaint. I therefore consider it reasonable to expect Mr X to use this process to try to get the Council to undertake further maintenance/repairs to the highway drainage.
10. Furthermore, we cannot determine negligence claims concerning damage to property and we cannot award damages. These are legal claims which may only be determined by insurers or the courts. Consequently, any claim for damages, such as costs for repairs to Mr X’s property, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr X to pursue such a claim through either the Council’s insurers or directly with the courts.
11. In light of the above restrictions and the actions the Council has already taken, an investigation by the Ombudsman is unlikely to achieve anything more for Mr X.

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Final decision

12. We will not investigate Mr X’s complaint because it is reasonable to expect him to use the available court remedies, and we are unlikely to achieve much more for him.

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Investigator's decision on behalf of the Ombudsman