Summary: We will not investigate Mr X’s complaint about the Council’s decision not to do further work to a drainage ditch to the rear of his property. Mr X’s complaint is a claim of negligence by the Council in not maintaining the ditch, which he considers has caused flood damage to his house and garden. Negligence is a legal matter which can only be resolved by a court. We cannot make determinations on legal issues. The court is the body better placed to consider this legal matter.

The complaint

1. Mr X lives in a development next to land owned by the Council. There is a ditch on the Council’s land, along the boundary with Mr X’s garden. Mr X complains the Council has failed to maintain this watercourse next to his property.
2. Mr X says this lack of Council maintenance has caused flooding to his house and garden, damaging his house’s foundations. He says he has incurred financial loss from this damage, from the cost of a surveyor’s report he commissioned, and from rerouting his land drains. Mr X says the matter has caused him trouble, upset, distress and anxiety, and used up his time.
3. Mr X wants the Council to dig out the watercourse, fix the damage so water is drained in line the plans from when the estate was built, and reimburse the money he has paid to fix the damage to his property.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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:

• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• viewed an online map of the location;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

8. In response to Mr X’s concerns, the Council visited the site several times and researched the original plans for the development before reaching its view. I have not seen evidence of fault in the way the Council responded to Mr X’s flooding issues. Officers gathered information to make their decision on what action they should or should not take.
9. The core of the Mr X’s complaint is that the Council neglected to properly maintain its ditch. He considers lack of Council maintenance has caused damage to his house and is seeking reimbursement of the costs he has incurred. Officers disagree and do not consider the Council ditch is the cause of Mr X’s flooding.
10. Mr X’s complaint amounts to a claim of negligence against the Council. Negligence is a legal issue on which only a court can rule. We cannot determine whether the claimed Council negligence, the lack of maintenance to the ditch, has caused the damage Mr X reports. Mr X has made an allegation of negligence which the Council denies. We cannot resolve that dispute. A court would look at the relevant evidence from both sides and rule on that legal matter. Any finding of a court against the Council would also be enforceable, whereas if we find fault causing injustice, we can only make recommendations to councils to act.
11. I note Mr X believes Council officers have come to the wrong conclusions about the locations and functions of his groundwater pipes, and the impact the Council’s ditch has on allowing that water to drain. He considers we could find the officers at fault for reaching what he considers to be the incorrect view that lack of maintenance to the ditch is causing the damage to his property. But after its investigations, the Council disagreed and denies its ditch is causing damage. To reach a view on whether the officers’ decisions and conclusions here were fault, we would have to decide the core negligence issue, which we cannot do as it is a legal matter.
12. Prior to taking any legal action, Mr X may also wish to consider submitting a claim against the Council’s insurers. He should contact the Council and ask to make such a claim, if he wishes to do so. If any insurance claim does not settle the matter to his satisfaction, a court would be the appropriate body to consider Mr X’s claim against the Council, for the reasons explained above. If Mr X wanted to pursue the matter in court, he may wish to seek independent legal advice before taking that route.

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Final decision

13. We will not investigate this complaint. This is because at its core, Mr X’s complaint is one of negligence by the Council, causing his claimed injustices. Negligence is a legal matter which can only be determined by a court, not by us. The court is the body better placed to consider this legal matter.

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Investigator's decision on behalf of the Ombudsman