Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of the highway. We could not achieve the outcome he wants and the courts are better placed to consider his complaint.

The complaint

1. Mr X complained the Council failed to complete works to prevent flooding outside his home. He said this has caused damage to his home.

Back to top

The Ombudsman’s role and powers

2. 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)
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 we cannot achieve the outcome someone wants.

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

Back to top

How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Highways Act 1980.

Back to top

My assessment

7. The Council is expected to routinely monitor the state of highways 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.
8. 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. If the highways authority does not accept it is responsible for maintaining the road, the person may apply to the Crown Court for such an order if necessary. This order requires the highways authority to carry out the work needed to the highway.
9. Mr X complained to the Council about issues with the drainage on the road outside his home. In May 2024, the Council responded to his complaint and said it would complete the works to prevent any further drainage issues. It did not give a date for when it would complete the works and it told Mr X that completion would depend on the urgency of other works it had already planned.
10. In December 2024, Mr X complained to us because the Council had still not completed the works.
11. We will not investigate Mr X’s complaint because we cannot achieve the outcome he wants. We cannot order the Council to complete the works. However, Mr X can apply to the courts for an order to require the Council carry out the works. I have not seen anything to suggest it would not be reasonable for Mr X to apply to the courts for an order.
12. Nor will we investigate Mr X’s complaint the drainage issues have caused damage to his home. We cannot make findings on claims of liability or negligence. These are legal matters only insurers or the courts can decide. If Mr X considers the Council negligent or liable for damage to his home, Mr X could make a claim on the Council’s insurance and, if needed, pursue the claim at court. I have not seen anything to suggest it would not be reasonable for Mr X to take his claim for damages to court as only they can provide a remedy.

Back to top

Final decision

13. We will not investigate Mr X’s complaint about highway maintenance because the courts are better placed to consider his complaint.

Back to top

Investigator's decision on behalf of the Ombudsman