Summary: Ms B complains the Council’s failure to take appropriate action has resulted in damage to her property through repeated water ingress. The Ombudsman will not investigate the complaint because matters relating to this issue have already been considered by the courts and so fall outside our jurisdiction.

The complaint

1. The complainant, who I refer to as Ms B, says the Council’s failure to take appropriate action in relation to a defective culvert and gully pot situated near her property has resulted in damage through repeated water ingress into her basement.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
3. 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

4. In considering the complaint I reviewed the information provided by Ms B and the Council. I gave Ms B the opportunity to comment on my draft decision and considered the comments she made.

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What I found

5. In 2010 Ms B complained to the Ombudsman about the Council’s failure to properly maintain the highway which, as a result, she said had led to water ingress and damage to her basement. We told Ms B that her complaint fell outside our jurisdiction as she had available to her an alternative remedy by way of court action against the Council.
6. In 2016 Ms B took action through the courts seeking an injunction against the Council to restrain a nuisance and for damages for negligence and/or nuisance caused by the ingress of water into the basement of her home. Ms B claimed the water came from defects from the drainage system maintained by the Council. The judge dealing with the case did not find for Ms B.
7. In 2019 Ms B contacted the Council again about damage caused to her property by water ingress, providing photographs and evidence which pre-dated the court action she had taken. As Ms B had provided no new evidence to cause it to consider reopening the case, and because it had told Ms B the same thing on numerous occasions, the Council advised her that it would not be engaging with her any further on the matter.

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Assessment

8. The restrictions on the Ombudsman’s powers to investigate complaints highlighted at paragraphs 2 and 3 apply to Ms B’s latest complaint. Previous matters already considered by the court fall outside our jurisdiction and we have no discretion here.
9. While Ms B’s current complaint now also refers to the Council’s failure to list and repair a culvert, it is open to her to take legal action against the Council if she believes it concerns a matter not previously considered by the court during her earlier court case. Given the previous history of the case, and the likely amount Ms B seeks in damages, if it is a new matter it is one we would reasonably expect her to pursue using her court remedy.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because matters relating to this issue have already been considered by the courts and so fall outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman