Summary: The Ombudsman will not investigate Mr B’s drainage complaint. This is because we could not achieve the outcome he is seeking.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council failed to keep statutory records, failed to take his complaint seriously and failed to stop water coming onto his property from a drain it installed but for which it says it has no records. Mr B told us there is repeated flooding to the rear of his house because of the Council neglecting to maintain this drain.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered the information Mr B and the Council provided and Mr B’s comments on my draft decision.

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What I found

8. When he complained the Council, Mr B said in 2018 he had reported flooding to his property from a ditch but the Council had failed to rectify the problem. He set out the history of the ditch. He said in 1984/5 a developer had applied for planning permission to develop the land to the rear the houses on his road. The developer obtained planning permission subject to conditions. Mr B says the Council failed to take enforcement action to secure compliance with the planning conditions.
9. Mr B has been aware of the flooding problem for well over 12 months before he made his complaint to us. But, following work done by the District Council and County Council, there have been lengthy periods when Mr B did not experience flooding to his property. Also, he says the flooding in 2018 was far more serious than it had been in 2005. So there was no need for him to pursue the matter until flooding started again in 2018.
10. There is no duty on councils to take enforcement action if a developer has not complied with a planning condition. There is discretion to do so. Given the passage of time, we could not now effectively investigate a complaint about the Council’s failure to take enforcement action and reach a sound enough conclusion on whether any fault by the Council several years ago has caused current injustice to Mr B.
11. Mr B says the drainage work the Council carried out stopped water onto his property until 2005. But the Council has no records of the work. Mr B says, if the Council has no records, it then does not then have to do anything. Mr B complains that the Council has failed to comply with the Land Drainage Act 1991, Schedule 4, Schemes for Small Drainage Works. We can and do find fault by councils if they have failed to comply with statutory requirements. If we find a complainant has suffered injustice as a result of fault by a council, we can call on the Council to provide a remedy. But, several years after the work was done in this case, we would not have a sound enough basis to conclude any fault by the Council in failing to comply with the Land Drainage Act 1991 has caused the flooding from 2018 onwards.
12. Mr B wants the Council to carry out remedial work so surface water is directed away from his property. He has referred to the information the Council publishes on its website about the responsibility for the maintenance of ditches and watercourses.
13. In cases where there is a dispute about responsibility for drainage maintenance or if negligence is alleged, we will usually decide that it is not unreasonable to expect complainants to seek a remedy by going to court. That is because liability for flooding and negligence are legal matters which a court of law is the appropriate body to decide. We do not have powers to order the Council to carry out the work Mr B wants. But in this case the Council has told us Mr B has also been in touch with the County Council because there is a public right of way to the rear of his property. The County Council has offered to put in a new drain to catch water which runs onto Mr B’s property from the right of way. The officer dealing with the matter says, if the work is acceptable to Mr B, the Council could take on the drainage pipe as an asset/liability with little cost. It could then facilitate the works the County Council proposes. But it says it cannot take this forward until Mr B confirms his position with the County Council. There is therefore another option available to Mr B which may offer a way forward.
14. Mr B told us the current resolution to his problem through the County Council has only come about because it was prepared to listen and do something about it. He says the District Council was the first body for him to contact about drainage, not the County Council. Mr B says, contrary to what he was told, the District Council had no communication with the County Council until after the County Council established the drain was there, and he was telling the truth. But this, of itself, would not justify us recommending to the District Council that it provides the remedy Mr B wants.
15. We do not consider it is not a good use of public resources to investigate complaints about complaint procedures, if we are not dealing with the substantive issue leading to the complaint.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because we could not achieve the outcome Mr B is seeking.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman