Summary: We will not investigate Mr X’s complaint about the Council’s decisions on the maintenance and investigations of a drain in his area. There is not enough evidence of Council fault to warrant us investigating. There is insufficient significant personal injustice caused to Mr X by the matters complained of to justify investigation.

The complaint

1. Mr X lives in a property near a surface water drain in a flood zone area. The drain passes under Council-owned land and land owned by the separate highways authority. Mr X complains the Council has:
1. failed to maintain its part of the drain;
2. failed to prove conclusively that its part of the drain is not blocked.
2. Mr X says the drain floods, expelling dirty water, which he considers a public health matter. He says the last time it flooded, a pump was needed to remove water to avoid property floods. Mr X says the drain water adds to the work already required to prevent floods in the area. He says older residents and families have to negotiate the flooding from the drain which they should not have to do.

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The Ombudsman’s role and powers

3. 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)
4. 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:

• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. In response to Mr X’s concerns about the drain, the Council liaised with the highways authority and local water company. The highways authority tested its part of the drain and found it to be working as expected. The Council did a camera survey of part of its section of the drain. The drain’s design meant the camera could not see all of it. The Council says it did not find evidence of blockage or failure in the drain seen by the camera. Officers took into account that the drains in the flood zone area are historic and may take longer to remove surface water when rain is heavy and prolonged. They took the view that pooling in those conditions did not indicate a failure or blockage in the drain.
8. We recognise Mr X considers the Council did not properly investigate and should have gathered more information about the drain. Officers assessed the information they and the highways authority had collected. Based on that evidence, officers determined use of public resources on further investigations of the drain was not justified. They gathered and considered appropriate evidence about the drain to reach their decision, a professional judgement they were entitled to make. There is not enough evidence of fault in the Council’s decision‑making process to justify us investigating. We recognise Mr X disagrees with the Council's decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Even if there has been fault by the Council here, we will not investigate. We recognise pooling of water from the drain in the area causes inconvenience to him and other residents. But there is no indication the rainwater carried by the drain, nor the impacts of the drain’s pooling on the area or his property, cause such damage or health and safety risks to amount to a significant personal injustice. Mr X’s property being in a flood zone would require him to take actions to ward against flooding to his property. We could not quantify and determine that additional requirements stemming from the drain complained about would cause such an impact to justify us investigating. There is insufficient significant injustice to Mr X caused by the matters complained of to warrant us investigating. Any injustice to others from the issues is not a personal injustice to Mr X.

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Final decision

10. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to warrant us investigating; and
• there is insufficient significant personal injustice caused to him by the matters complained of to justify us investigating.

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Investigator's decision on behalf of the Ombudsman