Summary: Ms X complains about the Council’s decision not to re-instate a highway drain back to its original position despite the new drain causing flooding to her land. We will not investigate the complaint because an investigation cannot achieve the outcome Ms X seeks.

The complaint

1. The complainant, who I refer to as Ms X, says the Council, having agreed to re-instate a highway drain back to its original position to stop flooding of her land, has now decided it will not do so.

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The Ombudsman’s role and powers

2. We investigate 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

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)

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How I considered this complaint

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X contacted the Council in 2021 about a new drain on a site adjacent to her land which was causing her land to flood. The new drain had replaced the original highway drain and she asked the Council to re-instate the drain back to its original position.
7. The Council met Ms X on site and sought legal advice on the matter. Although it had initially led Ms X to believe it would arrange for the drain to be re-instated to its original position, the legal advice it subsequently received was that the matter was a private one and it would not be taking any further action with regard to the drain.
8. Ms X wants the Council to re-instate the drain to its original position. However, this is not an outcome an investigation by the Ombudsman can achieve.
9. Moreover, the restriction highlighted at paragraph 3 applies to Ms X’s complaint because she knew about the matters of which she complains over 12 months before she complained to us and we would reasonably have expected her to have complained sooner.
10. While there appears to have been fault by the Council with regard to complaint handling, we will not investigate this matter when we are not investigating the substantive issue. However, we have asked the Council to address Ms X’s complaint through its complaints procedure as it has not yet done so.

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Final decision

11. We will not investigate Ms X’s complaint because an investigation cannot achieve the outcome Ms X seeks.

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Investigator's decision on behalf of the Ombudsman