Summary: Mr X complains that action by the Drainage Board led to his farmland being flooded and damaged. The Ombudsman will not investigate the complaint because it falls outside our jurisdiction as Mr X has an alternative remedy against the Council through the courts.

The complaint

1. The complainant, who I refer to as Mr X, says the Board allowed flood waters from a nearby river to be released into a drain which then caused flooding to his farmland. As a result, he says he has been put out of business and has had to give up his tenancy of the land. He seeks substantial damages from the Board.

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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. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. In considering the complaint I reviewed the information provided by Mr X and the Council. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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What I found

7. In June 2019, following extreme weather conditions, the Board agreed to the Environment Agency’s request that it take some high flows from a nearby river into its catchment area.
8. At this time Mr X contacted the Board and spoke to the Chief Engineer because he had water on his land. The Chief Engineer visited Mr X’s land, which was part of a larger area of land underwater due to the severe rainfall.
9. In February 2020, the Board wrote to Mr X seeking payment of outstanding drainage rates and threatening court action if they remained unpaid. Unhappy that he was being chased for rates when his land was flooded, Mr X contacted the Board and made a formal complaint.
10. A couple of days after making his complaint, Mr X called into the Board’s offices and spoke to the CEO and the Chief Engineer. During this meeting the Chief Engineer explained why the Board did not consider its actions had caused Mr X’s land to flood. The CEO explained the drainage rates were payable but that Mr X could appeal against the level of his liability.
11. Mr X did not accept what he had been told but in the meantime the Board stopped any further enforcement action for the debt and the Chief Engineer visited the site which confirmed his view that water entering the drain could not have caused flooding of Mr X’s land.
12. The CEO wrote to Mr X setting out the Board’s position on the points covered during their meeting. It also responded to a FOI request from Mr X, the response to which he is unhappy with.
13. The Board is taking legal action to recover the outstanding drainage rates debt.

Assessment

14. The restrictions highlighted at paragraphs 3 and 4 apply to Mr X’s complaint. His complaint that through the negligent actions of the Board his land was flooded is essentially a claim of negligence which falls to the courts to determine. As Mr X has this alternative remedy available to him which we would reasonably expect him to make use of the complaint falls outside our jurisdiction and will not be investigated.
15. Mr X had appeal rights against his rates liability. He also has appeal rights if he wishes to challenge the outcome of any FOI complaint made to the ICO against the Council.
16. In responding to the draft decision Mr X has made clear he holds the Board responsible for flooding his land. He says despite what he has said, we are wrong to think the Board has nothing to answer for. However, Mr X has misunderstood our position. We have made no judgement on who is or is not responsible for the flooding, or whether the Board has a case to answer. Instead, what we have said is that the matter is one for the courts to determine.

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Final decision

17. The Ombudsman will not investigate this complaint. This is because it falls outside our jurisdiction as Mr X has an alternative remedy against the Council through the courts.

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Investigator's decision on behalf of the Ombudsman