Stockton-on-Tees Borough Council (23 016 666)

Category : Environment and regulation > Drainage

Decision : Closed after initial enquiries

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: We will not investigate Mr and Mrs X’s complaint, brought by Mr Y, about the Council denying responsibility for flooding of their back garden. The complaint amounts to a claim that the Council is liable for the flooding and damage to their property. We cannot make findings on legal liability for property damage. It would not be unreasonable for Mr and Mrs X to pursue their legal liability claim against the Council at court, to pursue the required legal finding and redress they seek.

The complaint

  1. Mr and Mrs X live in a property next to higher level land owned and managed by the Council. The property is owned by a housing association. Their son Mr Y complains on Mr and Mrs X’s behalf that the Council:
      1. has failed to take responsibility for water from its land flooding their back garden;
      2. promised to resolve the problem but did not do so.
  2. Mr Y says Mr and Mrs X cannot use their garden because of the flood water. He says their shed and some of its contents have been damaged by the water. Mr Y also says that because they cannot hang out clothes in the garden, Mr and Mrs X are using more energy to dry them. Mr Y wants the Council to:
    • work with the housing association to resolve the problem;
    • supply Mr and Mrs X with sandbags for the time being;
    • help them with the additional costs incurred caused by them not being able to use their garden;
    • provide some form of compensation.

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The Ombudsman’s role and powers

  1. 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

  1. I considered information from Mr Y and the Council, and the Ombudsman’s Assessment Code.

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My assessment

  1. Mr and Mrs X consider the Council is responsible for the flooding of their back garden and the damage to property they say this has caused. Mr Y made an insurance claim on their behalf against the Council for the impacts of the flooding and property damage. The Council accepts its land is on a higher level than Mr and Mrs X’s garden, and that water runs off their land into that garden. But the Council’s insurer rejected the insurance claim, denying it is liable for the flooding and its impacts.
  2. The core issue in the complaint is a claim that the Council is responsible for the flooding damage in Mr and Mrs X’s garden. This is a question of legal liability we cannot answer. We cannot make findings on issues of legal liability for damages to property. Only insurers or the courts can make those decisions.
  3. The Council has denied liability by rejecting the insurance claim. So to get a finding on this issue, Mr and Mrs X would now need to take their claim to court. We recognise Mr and Mrs X may not wish to go to court. But it would not be unreasonable for them to pursue this route if required because it is the process, provided by national government, that they would need to use to get the required finding of legal liability against the Council. Court is the appropriate route, rather than an investigation by us, because for us to form a view, we would need to be able to decide whether the Council is responsible for the claimed damage, which we cannot do. It would also be reasonable for Mr and Mrs X to take the matter to court because the courts can serve legally binding orders on the parties involved, whereas we can only make remedy recommendations to councils.
  4. The Council has suggested Mr and Mrs X might make a claim against the housing association about the flooding and damage. We understand they have made a complaint to the association about the matter. We have no powers to investigate the housing association. If Mr and Mrs X decide to take court action against either the Council or the housing association on this issue, they may wish to seek independent legal advice before doing so.

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Final decision

  1. We will not investigate Mr and Mrs X’s complaint because it would not be unreasonable for them to make a claim to the courts to pursue the legal liability finding and redress they seek.

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Investigator's decision on behalf of the Ombudsman

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