The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council not fixing a road defect near her property and about the current highway drain. There is not enough evidence of fault in the Council’s decision-making process regarding the highway repairs, nor sufficient significant personal injustice caused by the highway defect, to warrant us investigating. It would be reasonable for Ms X to make her claims of property damage to the Council’s insurers and the courts. Investigation would not achieve a different outcome.
The complaint
Ms X lives in a property next to a watercourse. A drain within the highway next to her house discharges into the watercourse. Ms X complains: the Council has failed to do works to the road outside her home where water pools next to the drain, in a hollow in the road; the current highway surface water drain is incorrect.
Ms X says passing traffic splashes her property causing damage. She says her and her disabled son also get hit by the water when at the front of the property and she cannot use the parking space there. Ms X says she has made claims on her insurers for extensive damage caused by the highway water. She says the incorrect drainage system caused her property to flood in 2023 and she has had to move out while the damage is fixed.
The Ombudsman’s role and powers
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: there is not enough evidence of fault to justify investigating; or any injustice is not significant enough to justify our involvement; or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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 from Ms X, relevant online maps and images, and the Ombudsman’s Assessment Code.
My assessment
We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
Ms X first reported the highway defect several years ago. The Council’s officers have visited the site to assess the highway. They noted that part of the roadway near the drain had dropped so some surface water did not reach the drain to flow away. The officers considered the information received and gathered and applied their criteria for prioritising highway repairs. They determined the defect does not meet the Council’s criteria for immediate repair. Officers say they cannot say when the work will be done but have placed the case on their priority repair list. Officers have followed their process for assessing the priority of highway works when making their decisions here. There is not enough evidence of fault in the Council’s process to warrant us investigating. We recognise Ms X disagrees with the Council’s repairs decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Even if there has been fault in the way the Council prioritised its repairs, we will not investigate. We recognise that on and after wet days Ms X and her family risk splashes from passing traffic, causing inconvenience and understandable annoyance. But this is not a sufficient significant personal injustice, stemming from the Council’s repair decision, to warrant us investigating.
We note Ms X says splashed highway water has caused damage to her property. She also considers the Council’s drainage system was the cause of a significant internal flood of her property last year. We understand Ms X has made at least one claim with her own insurers for property damage. If Ms X considers the Council’s highway or its drainage system are responsible for damage to her property, she may claim on the Council’s insurance. We cannot decide claims of liability for property damage. If Ms X makes an insurance claim and is dissatisfied with the outcome, she could take her claim to court. It would be reasonable for Ms X to pursue this route to gain the redress she seeks, rather than through an Ombudsman complaint. That is because only insurers and the courts can decide questions of legal liability. The courts can also issue rulings which are legally binding on the parties, whereas we can only make recommendations.
The Council has placed Ms X’s highway matter on its list of priority works. We recognise the Council has not been able to say when the repair will be done. But we cannot order councils to give additional priority and provide dates for specific highway works. Investigation of this part of the complaint would not lead to any different outcome.
Final decision
We will not investigate Ms X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process regarding the repairs to the highway to justify investigation; and there is insufficient significant personal injustice caused by the highway defect to warrant us investigating; and it would be reasonable for her to make claims of liability for damage to her property to the Council’s insurers and the courts if required; and investigation would not achieve a different outcome.
Investigator's decision on behalf of the Ombudsman