Summary: The Ombudsman will not investigate Mr and Mrs D’s complaint the Environment Agency is responsible for damage to their garden bank and property. The complaint is late and there is no good reason for the Ombudsman to exercise his discretion and now investigate. This is because the complaint is about matters better considered by the courts.

The complaint

1. The complainants, whom I shall call Mr and Mrs D, complain the Environment Agency (‘The Agency’) failed to properly manage the lock gates near their property. When the gates were opened, the force of the water led to the collapse of Mr and Mrs D’s garden bank and cracks appearing in their property.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)

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How I considered this complaint

5. I considered the information Mr and Mrs D provided when they made their complaint. I sent a draft decision to Mr and Mrs D and discussed the complaint with Mr D before I made my final decision.

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What I found

6. Mr and Mrs D have explained they live about half a mile away from lock gates. For 40 years, a local lockkeeper managed the lock gates taking account of spring tides and weather forecasts. When he retired, the Agency took over.
7. In March 2016, the spring tides took place over three days and these coincided with a period of heavy rain. Mr and Mrs D complain the Agency did not attend the lock gates throughout this time, leading to a substantial build-up of water. When staff did attend, they opened the gates fully. Mr and Mrs D say this released the water with such force it washed away all the silt and earth from under their garden bank. This led the centre of their garden bank to collapse and cracks appeared in their home.
8. Mr and Ms D instructed a solicitor to assist them with a claim against the Agency. The solicitor was acting on a ‘no win no fee’ basis but has now asked Mr and Mrs D to pay if they want to continue their claim. Mr and Mrs D are unable to do this and have therefore complained to the Ombudsman.
9. The events Mr and Mrs D complain about took place more than 12 months ago and the complaint is therefore late. The Ombudsman cannot normally investigate late complaints, unless there are good reasons to do so. I do not consider there are good reasons for the Ombudsman to exercise his discretion and now investigate this late complaint. This is because whether the Agency was negligent in its action and is liable to Mr and Mrs D for the damage to their property are not matters the Ombudsman can determine. Only the courts can decide these matters.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because the complaint is late and there are no good reasons for the Ombudsman to exercise his discretion and now investigate.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman