The Ombudsman's final decision
Summary: We will not investigate this complaint about drainage because the Council’s insurers and the courts are better placed to deal with the complaint.
The complaint
Mr Y complained the Council has failed to ensure the water flow coming from the road collects into the existing drainage system.
Mr Y says the road surface has changed due to tree root growth and resurfacing and now water runs onto his property, causing damage to his kitchen and to the house foundations themselves, causing significant worry.
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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y is unhappy with the maintenance of the road outside his property, as following tree root growth and previous resurfacing the road profile has now changed, causing the existing drainage to be inadequate and not drain water from the road properly. Mr Y says the rainwater is instead draining onto his property, causing flooding on his driveway and damage to his kitchen floor. He is also concerned that as water drains into the ground around his home, his property is showing signs of the foundations moving, he believes due to the flooding.
Mr Y says he initially contacted the Council about the gullies and drainage on his road not working in July 2022. He says he has since asked for a response but the Council has not fully responded, until he made a formal complaint. The Council’s response, in May 2024, has been that it is investigating the drainage issue near his property and if defects are found, they will be repaired.
Analysis In this case, Mr Y has said the flooding from the water is causing damage to his property. He is concerned about the damage which may be significant.
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
Any claim for damages, such as costs for repairs to Mr Y’s property, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or the Council’s insurers by making a claim, than the Ombudsman.
Mr Y is also seeking the re-profiling of the road by the Council to ensure that the existing drainage system works as originally intended to collect and drain the water without it coming onto his land.
The Council is expected to routinely monitor the state of highways, depending on their classification and carry out repairs where necessary. Here, the Council does seem to be investigating the issue, but the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation. There is also no duty on the Council to prevent water going onto adjoining properties, only that the road is kept in a usable condition for road users.
If a person considers that a highways authority has failed to maintain a highway it is responsible for, including the drainage, 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.
Mr Y may use this process to try to get the Council to repair the road drainage. 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, including its drainage. Also, unlike the Ombudsman who can only recommend that the Council consider carrying out the work, 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 the Council’s insurers and the courts are better placed to deal with the complaint.
Investigator's decision on behalf of the Ombudsman