Summary: We will not investigate this complaint about a drainage matter because it is reasonable to expect Mr Y to go to court and the Information Commissioners Office about the issues and these bodies are better placed to deal with the complaint.

The complaint

1. Mr Y complained the Council failed to repair a drain opposite his home, which led to flooding and damage to his property. He says the Council has subsequently refused his claim for damages against it. He is also unhappy with the Council’s failure to provide documents about a previous drainage inspection following a Freedom of Information request he made.
2. Mr Y says his property has been damaged and he has had to replace flooring and throw away clothing, costing him over £900.

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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 normally expect someone to refer the matter to the Information Commissioner (ICO) 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)
5. 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

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
8. Mr Y’s injustice relates to the damage to his property and the costs to repair it. Mr Y has made a claim to the Council for the cost of these, which the Council has rejected. It is now for Mr Y to decide if he wishes to pursue his claim against the Council.
9. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. As the courts can make reasonable adjustments and Mr Y may be able to recover his costs through the court for taking legal action, it is reasonable for Mr Y to pursue his claim through either his own insurer or the courts. We will not investigate this complaint.
10. Mr Y has also complained about the Council’s failure to provide information that he had requested as part of a Freedom of Information request.
11. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation.
12. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about Freedom of Information requests, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. I consider that to be the case here and Mr Y should therefore approach the ICO about his concerns.

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Final decision

13. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to go to court and the Information Commissioners Office about the issues and these bodies are better placed to deal with the complaint.

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Investigator's decision on behalf of the Ombudsman