Summary: We will not investigate this complaint about damage to the complainant’s property which he says occurred due to the Council’s failure to maintain public drains. This is because the Council deny legal responsibility and the complainant could reasonably take court action to achieve his desired outcome. The courts are best placed to consider and decide such matters.

The complaint

1. The complainant (Mr B) complains the Council allegedly failed to clear a blocked public drain outside of his home which is maintainable at public expense. Mr B says there was heavy flooding outside his home in late 2022 which resulted in damage being caused to his electric gate. He also says responsibility for the damage lies with the Council on the basis the drain was unable to relieve the flooding as it should have due to it being blocked.
2. In summary, Mr B says the alleged failing has caused him a lot of stress and frustration. He also says he has incurred financial loss due to having to pay for the repair of the electric gate. As a desired outcome, Mr B wants the Council to cover the costs of fixing the electric gate and to take action to prevent similar occurrences in the future.

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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. I considered information provided by the @complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. In response to Mr B seeking recovery of the amount he paid for the repair of his electric gate, the Council has rejected that it is liable for the damage. Where liability is disputed in connection with alleged damage to property, we normally expect a complainant to exercise their right to take the matter to court in order to obtain a remedy. As I understand from Mr B’s complaint, his view is mainly that the Council has been negligent. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
6. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. I do not consider there is any exceptional reason why Mr B cannot do this and so I do not propose investigating this complaint.

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Final decision

7. We will not investigate this complaint. This is because the complainant could reasonably take court action in relation to the alleged damage. The courts are best placed to consider and decide the issue of liability.

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Investigator's decision on behalf of the Ombudsman