The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because it is reasonable to expect Mr Y to use his right to approach the courts, who are better placed to deal with the issues in the complaint.
The complaint
Mr Y complained the Council had failed to complete work to the highway, particularly to the pavement, to prevent flooding in the building in which he lives.
He says the building has flooded repeatedly since 2018, most recently in 2021, causing him to make a claim on his insurance which has increased his premiums and has been inconvenient.
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) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y initially complained to the Council about the pavement layout and the impact it was having on potential flooding in early 2021. The Council inspected the site in March before completing further surveys and works between August and December 2021.
The Council then contacted Mr Y to ask if the situation had improved. Mr Y confirmed in early 2022 that it had not been fully resolved. The Council then advised that any further works would need to be done as part of wider projects at a later date. Mr Y then approached us in November 2022, asking us to investigate his complaint.
Analysis The Council as a local highways authority has a statutory duty to maintain adopted streets. The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. But, the level of maintenance or urgency, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
If a person considers that a highways authority has failed to maintain a highway, including the drainage along it or underneath it, that 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 within a definitive time frame.
If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the Crown court for such an order.
Mr Y may use this process to try to get the Council to repair the road, particularly the drainage next to and underneath it. 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.
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. We will therefore not investigate.
Final decision
We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to use his right to approach the courts, who are better placed to deal with the issues in the complaint.
Investigator's decision on behalf of the Ombudsman