Summary: We will not investigate this complaint about the Council’s management of the flood risk to Mr X’s property. This is because there are other bodies better placed to consider Mr X’s complaint, and it is reasonable to expect him to take the Council to court to seek damages.

The complaint

1. Mr X complained the Council had failed to: act to prevent his property flooding, despite the Council being aware of infrastructure failures; compel the water company to address the infrastructure problem; and inform Ofwat of the problem. He said this had damaged his home, finances and mental health. He wants compensation from the Council and the Council to fully investigate and manage the risk of further floods. Mr X also complained the Council had failed to respond to requests for information. He wants the Council to disclose all relevant documents.

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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. 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 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered the information provided by Mr X.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X and the Council say Mr X’s property is at risk of flooding due to problems with his water provider’s pipes. The Council told Mr X that, while it has a duty to manage flood risk at his property, it must prioritise this against other flood mitigation work needed elsewhere in its area.
8. Mr X wants the Council to compensate him for damage to his property. The questions of whether Mr X has suffered damage due to negligence or other fault, and if so whether the Council is responsible, are not legally straightforward. This is more appropriately for the courts to decide, so the restriction in paragraph 3 applies. It is reasonable to expect Mr X to take court action if he wishes to pursue compensation.
9. The Water Services Regulation Authority (Ofwat) is the main regulator for water companies. Anyone, not just councils, can contact Ofwat about a problem. Mr X can take his complaint about his water company directly to Ofwat and ask it to use its enforcement powers to deal with the alleged infrastructure problem. The Council has advised Mr X how to contact Ofwat.
10. Mr X says the Council did not reply properly to his subject access requests for information about himself under data protection rules, or to his requests under freedom of information rules.
11. Regarding subject access requests, we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) Here, I see no good reason for us to investigate. The Information Commissioner is best placed to decide if the Council mishandled Mr X’s requests about his own data.
12. The Information Commissioner's Office also considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. That is the case here. If Mr X believes the Council has not shown him everything he is entitled to see, he can reasonably put that to the Information Commissioner, who has the expertise to decide such points. If Mr X were to disagree with the Information Commissioner’s decision on freedom of information matters, he might then have the right to appeal to the tribunal.

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Final decision

13. We will not investigate Mr X’s complaint. It reasonable to expect him to go to court to seek damages, and there are other bodies better placed to manage his complaints about the water provider’s pipes and the non-disclosure of documents.

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Investigator's decision on behalf of the Ombudsman