West Berkshire Council (16 018 430)

Category : Environment and regulation > Drainage

Decision : Closed after initial enquiries

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr X’s complaint about the flooding to his home. It is reasonable to expect him to go to court if he considers the Council failed to correctly identify the cause of flooding in 2015.

The complaint

  1. Mr X complains the Council failed to correctly identify the source of highway flooding when he reported it in 2015. He says because of this his property was damaged by flooding in 2016 and wants the Council to apologise and compensate him for the cost of the excess on his home insurance.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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)

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How I considered this complaint

  1. I have considered the information Mr B sent to the Ombudsman and discussed his complaint with him. I have also considered the Council’s responses to his complaint.
  2. Mr X commented on the draft version of this decision.

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What I found

  1. In September 2015 Mr X complained to the Council that his road was flooding after heavy rain. Council officers examined the gullies outside his home and jetted the drain. They established that water was running freely although they could not access the drainpipe past 35 metres.
  2. In May 2016 Mr X says he contacted his local councillors asking for an update but did not get a response.
  3. In September 2016 after heavy rainfall Mr X’s property flooded. He contacted the Council. An officer contacted him at the end of September and confirmed that under the Water a flood Managements Act 2010 the Council had a duty to investigate the incident.
  4. In November engineers arrived and jetted the drain again. They dug a test pit in December. This showed the drainpipe was severed about 36 metres from Mr X’s home and was buried underneath a recent housing development.
  5. In January 2017 to Council confirmed to Mr X that the broken pipe would be repaired.
  6. Mr X complained to the Council saying if it had investigated properly in 2015 and found out the pipe was severed it could have been repaired and his property would not have flooded.

Analysis

  1. Mr X complained to the Council about a build-up of rainwater in the road outside his home. The Council cleaned the gullies and jetted the drain. It says the original engineers decided they could not access past 36 metres because the drainpipe met a T junction.
  2. The Council says it could justify a more invasive investigation of the drain due to its duties under the Flood and Water Manager Act 2010. Following this investigation it identified the severed pipe and the developer of the nearby site repaired the damage.
  3. Mr X is says the Council was negligent when it failed to find out that a drain near his property was broken and should compensate him for the cost of his home insurance excess.
  4. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which require the more rigorous procedures of civil litigation for their proper determination. It is reasonable to me that Mr X should take legal action if he believes the Council is at fault for the flooding at his home. For that reason I do not intend to exercise discretion and investigate the complaint.

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Final decision

  1. The Ombudsman has discretion to investigate Mr X’s complaint even though he can take legal action. But it is reasonable to expect him to take his complaint to court. That is because he is seeking to establish the Council’s negligence lead to his property flooding. The court is the appropriate body to decide liability and damages. Therefore I will not investigate Mr X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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