Summary: We will not investigate this complaint about how the Council dealt with drainage issues. This is because a complainant has used their right of appeal against the Council’s decision to serve notices against her. Other matters happened too long ago.

The complaint

1. The complainants, who I will call Ms X and Mrs T, complain about how the Council dealt with issues with the drainage system under their home. The complainants say the Council failed to properly deal with the matter when they reported the issue in 2018, and when a neighbour reported the issue in 2021 Ms X and Mrs T complain about the Council’s decision to issue Mrs T and her sister with notices under the Building Act 1984. The complainants say the Council should compensate them for the distress this caused and for costs they have incurred.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X lives with her two daughters one of which is Mrs T. The home is owned by Mrs T and her sister. Ms X and Mrs T say they contacted the Council in 2018, to report concerns about the smell of sewage near their home. The Council carried out an investigation but closed the case. In 2020, a neighbour contacted the Council about the same issue. The Council carried out further investigations and concluded that there was a fault with the drains under Mrs T’s home and that they needed to repair them. In 2021, the Council issued Mrs T and her sister notices under Section 59 of The Building Act 1984, instructing them to carry out the repairs. The repairs were carried out, but Mrs T and her sister subsequently appealed the Section 59 notices to the magistrate’s court.
9. I will not investigate Ms X and Mrs T’s complaint about how the Council dealt with their reports about drainage in 2018. This is because this complaint is made late. I see no reason why Ms X and Mrs T could not have complained at the time if they were dissatisfied with the outcome of the Council’s investigation into the issue.
10. I cannot investigate their complaint about the Council’s actions in 2021, which led to notices being issued under Section 59 of the Building Act 1984. This is because Mrs T and her sister used their right of appeal against the notices to the magistrates court which places the matter outside of our jurisdiction.
11. Whilst Ms X did correspond with the Council about these matters, no action was taken against her because she does not own the property. No notices were therefore issued against Ms X so I cannot say that the Council’s actions have caused her an injustice.

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Final decision

12. We will not investigate Ms X and Mrs T’s complaint because the matter has been subject to an appeal to the magistrate’s court and other elements are late.

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Investigator's decision on behalf of the Ombudsman