Decision : Closed after initial enquiries
Decision date : 18 Mar 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint that the Council is liable for flood damage to the complainant’s property. This is because it is reasonable to expect the complainant to pursue a remedy via the courts.
- The complainant, whom I refer to as Mrs B, says the Council is liable for the damage caused to her property by a flood in 2017, because it was aware the drains were blocked since 2013 but it had not investigated the problem.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
How I considered this complaint
- I have considered:
- Mrs B’s complaint to the Ombudsman;
- The Council’s 7 December 2018 complaint response;
- Mrs B’s comments on a draft version of this statement.
What I found
- If Mrs B believes the Council has been negligent and is liable for damage to her property, then it is open to her to pursue the matter further through the courts. With reference to paragraph 3 above, because Mrs B has a legal remedy, her complaint would normally fall outside the jurisdiction of the Ombudsman.
- I have discretion to investigate such matters, and I appreciate Mrs B says she cannot afford to go to court as she has spent her savings on repairing the property after the flood.
- But adjudication on negligence and liability disputes would usually involve making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination. The Ombudsman cannot determine liability for negligence. Only insurers or the courts can do this.
- And, only a court could determine what action must be taken if the Council is liable for the damage. The Ombudsman has no powers to enforce such a remedy.
- On balance, I consider it would be reasonable for Mrs B to use pursue a court remedy, so the Ombudsman has no jurisdiction to investigate her complaint.
- The Ombudsman will not investigate Mrs B’s complaint. This is because, on balance, it is reasonable to expect Mrs B to pursue the matter in court.
Investigator's decision on behalf of the Ombudsman