Summary: Mr D complains about the way the Council has handled drainage problems in his property and road. The Ombudsman has discontinued our investigation. This is because further investigation could not achieve any worthwhile outcome for Mr D and it would be reasonable for him to pursue a legal claim against the Council.

The complaint

1. Mr D complains about the way the Council has handled drainage problems in his property and road. He says a leaking pipe has damaged his property. He wants the Council to improve the surface water drainage in his road.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I spoke to Mr D about his complaint and considered the Council’s responses to his complaint. I gave Mr D and the Council an opportunity to comment on my draft decision.

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What I found

What happened

6. Surface water from the highway drains down a pipe that runs underneath Mr D’s garden to a soakaway behind his property. Mr D says in heavy rain the pipe is unable to cope with the volume of water, forcing it to leak. This has damaged his lawn. Mr D also says there are cracks in the side of his house which may have been caused by the leaking pipe.
7. Mr D contacted the Council about the matter in 2017. He says it failed to take his concerns seriously and delayed responding to his queries.
8. Mr D made a formal complaint in June 2018. The Council replied in August 2018. It apologised for not responding to his earlier correspondence. The Council said it was trying to determine responsibility for the pipe on Mr D’s land, but this was taking some time. It wrote to Mr D again in September 2018, but responsibility for the pipe had still not been determined. The Council offered to pay for repairs to the pipe as a goodwill gesture, although it did not accept liability for it or for future maintenance.
9. Mr D was dissatisfied. He said fixing the pipe would not resolve the problem as future heavy rain would cause it to leak again. He asked the Council to improve the surface water drainage in his road.
10. The Council sent a Stage 2 response to Mr D’s complaint in October 2018. This acknowledged that surface water run-off had increased in the road, at times causing flooding to Mr D’s garden. The Council said it had investigated other drainage options but did not consider them to be suitable or cost effective.
11. Following further correspondence, in April 2019 the Council referred Mr D to the Ombudsman. It said installing additional soakaways was not practical due to the nature of the road, soil strata and existing services. It proposed visiting the site to assess if there were any other pipes which may be worsening the situation.
12. Mr D remained dissatisfied and complained to the Ombudsman. He said the Council had failed to engage with the matter and its responses seemed designed to fob him off, rather than to take action.

My findings

13. Based on the evidence I have seen, I propose to discontinue my investigation into Mr D’s complaint. I explain why below.
14. It is probable Mr D is responsible for drainage on his land and may be able to take steps to protect his property and apply for necessary permissions to replace the pipe. However, if there is a dispute about responsibility for, or ownership of, the pipe, this would be a matter for the courts. If Mr D took the Council to court, the Council would either accept it owned the pipe, or, the court would be able to determine ownership if this is not clear from the title deeds or other land registry documents. The Ombudsman cannot determine ownership.
15. If Mr D considers the Council to be liable for the flooding to his garden, it is reasonable to expect him to pursue a claim for damages by going to court. He may have legal cover on his home insurance to help him with this. Only a court can rule on whether the Council has been negligent and, if it has, whether it should pay damages to Mr D. The courts can also enforce any recommended remedy. The Ombudsman does not have these powers.
16. Mr D considers fixing the leak is not a long-term solution. The Council says it has considered other drainage options, but these are not practical or cost effective. This is a decision the Council is entitled to make. The Ombudsman cannot question it without evidence of administrative fault in the way it was made. I realise Mr D disagrees with the Council's view, but that is not evidence of fault. Even if we found fault, we could not require the Council to take the action Mr D wishes it to. We could only ask it to reconsider its decision. Further, I could not ask the Council to remedy injustice now that may be caused in the future.
17. Mr D complains of delay and lack of response by the Council. It is not a good use of public resources to investigate complaints about complaint handling if we are not dealing with the substantive issue. But even if I investigated and found delay by the Council in handling the matter, it is unlikely I could achieve more than what the Council has already offered. In addition, any injustice caused by delay in offering to fix the pipe is mitigated by the fact that this was not a solution that was acceptable to Mr D.
18. The law allows me to consider whether the Ombudsman can achieve the outcome that a complainant wants, or whether there is another body better placed to consider a complaint, before deciding whether to continue with an investigation. In this case, there is no recommendation I could make which would guarantee the outcome that is ultimately sought by Mr D, if I found fault, and the court system is better placed to deal with the issue. I have therefore discontinued my investigation into his complaint.

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Final decision

19. I have discontinued my investigation into this complaint.

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Investigator's decision on behalf of the Ombudsman