Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to take enforcement action against private landowners, or carry out works to prevent further damage to her property. Mrs X has an alternative legal remedy, and it would be reasonable to expect her to use this. Additionally, there is not enough evidence of fault by the Council in its decision not to act.

The complaint

1. Mrs X complained the Council failed to carry out works on a watercourse near her home, or use it powers to make the landowners carry out these works, and this resulted in her property flooding. She wanted the Council to use its enforcement powers to make the landowners complete the required works, or for the Council to complete the works. Mrs X said the Council’s actions caused her a significant financial impact.
2. Mrs X also complained about how the Council considered her complaint.

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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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 continue an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.
8. I considered the Flood and Water Management Act 2010.

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My assessment

9. In 2018, the Council carried out emergency works on a watercourse near Mrs X’s home. Mrs X said these works were not sufficient and have caused further problems with the flow of water, which has now resulted in recent flooding to her home.
10. Mrs X asked the Council to complete additional works to fix the issue.
11. The Council responded to Mrs X and told her the land in question was owned by private individuals and therefore it was not responsible for maintaining the land or carrying out any repair works. It explained the works it completed years before were in response to an emergency and once these were completed, the Council handed responsibility for the land back to the private owners.
12. Mrs X complained to the Council. She said it had failed to carry out its statutory duties as the lead local flood authority. She asked it to use its legal powers to carry out works on private land or make the landowners to complete further repair works.
13. The Council told Mrs X it would not use its powers. It explained its legal powers were permissive, which means it does not have a legal duty to ensure the works are completed, only that it can use its discretion to do so. It told her it believed this to be a private matter and advised Mrs X it was open to her to seek legal redress from the landowners.
14. We will not investigate Mrs X complaint, because Mrs X has an alternative legal remedy and in any case we cannot achieve the outcome she wants. This is because the substantive issue is Mrs X believes the Council are negligent and liable for damages to her home. We cannot make findings on claims of negligence and liability, and we cannot award costs or order the Council to carry out repair works. These are legal matters only insurers or the courts can decide, and if appropriate make a binding decision.
15. If Mrs X considers the Council negligent or liable for damage to her property, it is reasonable for her to make a claim on the Council’s insurance and, if needed, pursue the claim in court. And given only the courts can require the Council to act it would be reasonable to expect Mrs X to use this an alternative legal remedy
16. Additionally, we will not investigate Mrs X’s complaint the Council has not used its legal powers to ensure the works are completed. The legal powers relating to flooding are permissive which means the Council does not have a duty to take action. The Council appears to have considered the circumstances and has explained why it has decided not to take action in this case.
17. The Ombudsman is not an appeal body, and we do not substitute our decision for one the Council made. In line with our powers as highlighted in paragraph five, we do not criticise a decision made in the absence of any flaw, therefore, it is unlikely we would find fault with the Council for its decision not to use its permissive powers.
18. Finally, we will not investigate how the Council handled Mrs X’s complaint. It is not a good use of resources to investigate complaints handling when we are not considering the substantive issue being complained about.

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Final decision

19. We will not investigate Mrs X’s complaint because she has an alternative legal remedy and given the outcome she is looking for, it is reasonable to expect her to use this remedy because only the courts can decide on negligence and liability for damage to property.

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Investigator's decision on behalf of the Ombudsman