Summary: The Ombudsman will not investigate Mr B’s complaint that the Council did nothing to help him with the problem of contaminated water leaking. This is because there is no evidence of fault in the way the Council reached its decision on what it should do.

The complaint

1. The complainant, whom I shall call Mr B, complained that for weeks the Council did nothing to help him with the problem of contaminated water leaking on to the path beside his garage. Mr B told us he and his family cannot walk on the path, which smells, and he has incurred costs.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I have considered the information Mr B provided, the Council’s responses to his complaint, the Council’s records and Mr B’s comments on my draft decision.

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What I found

6. Mr B originally complained to us in January 2019. He told us a utility company wanted to enter one of his neighbour’s properties, but the occupant had refused entry. Mr B said he wanted the Council to obtain a warrant to allow the utility company to enter the property, investigate and repair the problem. He does not consider the Council’s Environmental Health officers have done their job properly.
7. The Council’s records say a drainage problem identified in the summer of 2018 had been put right.
8. Mr B has sent us a copy of a report on the findings of a microbiological examination of the leaking water.
9. The Council initially responded to Mr B’s complaint in January 2019 after its officer had met a representative of the utility company, visited the site and inspected the work done by one of Mr B’s neighbours. The Council said the utility company was investigating the surface water drainage upstream from Mr B’s home. Its officer expressed confidence the surface water and sewage from the property next door to Mr B was draining to the correct drainage system. However, the Council said there may be a problem with the surface water drain within Mr B’s boundary so it recommended Mr B should arrange a survey.
10. In February 2019 Mr B told him a drainage company had checked the drainage system on his property and found it was fully operational. In response to Mr B’s request, the Council sent him a copy of information on the survey the utility company had done in January 2019.
11. In its final response to Mr B’s complaint in March 2019 the Council said its officer would be asked to contact him in the next 10 days to offer further investigations to verify the statements it had made within its letter.
12. Mr B was not satisfied with the Council’s final response to his complaint. His view is, had the Council’s officer obtained a court order for the utility company to enter his neighbour’s home, the problem would have been solved. He would not then have had ten months of sewage contaminated water on the path by his garage.
13. We cannot question whether the Council’s decision on what to do in this case was right or wrong if there is no evidence of fault in the way it was reached. The Council’s officer has liaised with the utility company and visited the site. It was not fault for the Council to rely on the results of the utility company’s survey when responding to Mr B’s complaint. If Mr B believes he has suffered significant loss or damage because of negligence by the Council, it is not unreasonable to expect him to seek a remedy by going to court. That is because a court of law is the appropriate body to rule on liability for loss and damage. It is a legal issue.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because there is no evidence of fault in the way the Council reached its decision on what it should do.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman