Summary: Mrs X complained about the Council’s refusal to accept liability for flooding from the highway into her home on two occasions. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it is reasonable for Mrs X to challenge the insurers decision on liability in the court.

The complaint

1. The complainant, Mrs X, complained about the Council’s failure to accept liability for flood damage to her home following run-off from the highway due to a blocked highway gully. She says her kitchen was damaged and she had to claim on her household insurance which involved her paying the excess charge of £150. She wants the Council to accept responsibility for the damage to her home.

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The Ombudsman’s role and powers

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

3. I have considered all the information which Mrs X submitted with her complaint. I have also considered the Council’s response. Mrs X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Mrs X says her home was flooded in June when water ran off the highway from a blocked gully. In July, another flooding incident occurred from a blocked gully and again her home was affected. She made a claim against the Council for the damage which she suffered and claimed that it was negligent.
5. The Council’s insurers rejected her claim and denied the Council had been negligent. They said that the gullies were maintained on a programme and that no prior notification of flooding or blockages was made until the incident. Following the report, the Council says it removed vegetation and blockages from the gullies.
6. The Ombudsman cannot determine liability in negligence for damage to property or personal injury. Only insurers or the courts can do this. The insurers have rejected the claim and it is reasonable for Mrs X to consider taking the matter to the small claims court which is the proper body to decide claims about negligence.

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Final decision

7. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it is reasonable for Mrs X to challenge the insurers decision on liability in the court.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman