The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about a blocked drain outside her property. This is because it would be reasonable for her to use the process set out at Section 56 of the Highways Act 1980 to take the matter to court.
The complaint
The complainant, Mrs X, complains about a blocked drain on the highway which she says results in flooding to her property.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Mrs X and the Ombudsman’s Assessment Code.
My assessment
The Highways Act 1980 requires local highway authorities to maintain public highways including the drains which run beneath them. The Council says it has complied with its duty in this case by inspecting the drain and cleaning it regularly but Mrs X suggests it is not enough. She is concerned about flooding and damage to her property.
Whether the Council has met its duty requires interpretation of the law and this is not something we can provide. The Council is also under no obligation to improve the drains on Mrs X’s road and its liability for any damage to her property may look at any established rights of drainage which are also a legal issue more appropriate for the courts to determine.
If therefore Mrs X believes the Council has failed in its duty to maintain the highway we would expect her to use the process set out at Section 56 of the Highways Act 1980 to raise the issue; this allows Mrs X to serve notice on the Council to carry out repairs. If it fails to do so, Mrs X may then apply to the magistrates’ court for an order requiring it to take action. The court may also consider any claim for damages to Mrs X’s property and the Council would be bound by any order made by the court.
Final decision
We will not investigate this complaint. This is because it would be reasonable for Mrs X to serve notice on the Council and take the matter to court.
Investigator's decision on behalf of the Ombudsman