The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s maintenance of a highway drainage system which is causing damage to Mrs X’s home. It is reasonable for her to make a claim against the Council and to seek a remedy in the courts if liability is not accepted.
The complaint
Mrs X complained about the Council’s failure to prevent highway being splashed over her house by traffic during heavy rain. She says the highway drainage is inadequate and the Council should provide additional gullies to prevent surface water building up.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X lives alongside a highway which she says has streams of water running down it when there is heavy rain. She has been complaining about the lack of sufficient drainage for some time but the Council has refused to provide any additional drainage gullies. She says that her home is a listed building with wooden window frames and the splashing of water against them by traffic has caused them to rot.
The Council says the drainage system is adequate for the highway most of the time but it was not designed historically to cope with excessive amounts of rainfall. The Council has a maintenance schedule for clearing the existing gullies and this keeps the surface clear for traffic at most times.
The Council has a duty under the Highways Act 1980 to prevent the highway from becoming obstructed to traffic by standing water. This duty does not extend to preventing run-off or splashing by traffic onto adjacent private land or property. If Mrs X believes her home is being damaged due to negligence by the Council, she could submit a claim against its insurance. If the Council denies liability then it is reasonable for her to seek a remedy in the courts which are the only bodies which can determine legal claims for the tort of negligence.
Final decision
We will not investigate this complaint about the Council’s maintenance of a highway drainage system which is causing damage to Mrs X’s home. It is reasonable for her to make a claim against the Council and to seek a remedy in the courts if liability is not accepted.
Investigator's decision on behalf of the Ombudsman