Summary: We will not investigate Mrs X’s complaint about the Council’s drain maintenance and it not accepting responsibility for flooding to her property. Mrs X’s complaint is a claim of negligence by the Council, a legal matter on which only a court can rule. It would not be unreasonable for Mrs X to seek a remedy in court, so we will not exercise our discretion to investigate.

The complaint

1. Mrs X complains the Council has not properly maintained its drains, but has not accepted responsibility for the flooding to her cellar in 2020.
2. Mrs X says the matter has caused her stress and worry, and she paid £180 to a private contractor to clear her cellar and the drains. Mrs X wants the Council to refund her £180.

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The Ombudsman’s role and powers

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. As part of my assessment I have:
• considered the complaint and the documents provided by Mrs X;
• issued a draft decision, inviting Mrs X to reply.

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What I found

5. Mrs X considers the Council has not done enough to sweep and clear its roads and drains. She believes that lack of maintenance caused the flooding to her property.
6. Mrs 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 drains, caused the flooding Mrs X reports. Mrs X has made an allegation of negligence which the Council and its insurers deny. We cannot resolve that dispute.
7. The courts are better placed to deal with this issue. A court would look at the relevant evidence from both sides and be able to rule on the legal negligence matter. Any finding of the court against the Council would also be enforceable, whereas if we find fault causing injustice, we can only make recommendations for councils to act.
8. I have seen nothing to suggest it would be unreasonable to expect Mrs X to use the court process available to her to seek a remedy. Therefore we will not exercise our discretion to investigate this complaint.

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Final decision

9. We will not investigate this complaint because:
• Mrs X’s complaint amounts to a claim of negligence by the Council, a legal matter on which only a court can rule; and
• it would not be unreasonable for Mrs X to take her matter to court to seek redress, so we do not have grounds to exercise our discretion to investigate.

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Investigator's decision on behalf of the Ombudsman