Summary: We will not investigate this complaint about flooding from a council owned property causing damage to Mrs X’s property. This is because it is reasonable to expect Mrs X to go to court.

The complaint

1. Mrs X complains the Council has failed to resolve a long-standing drainage problem involving a council-owned property .
2. Mrs X says foul wastewater from the council property enters a shared rainwater downpipe and drain which is unable to cope with the volume or type of discharge, resulting in regular flooding at the front of her property. She says the flooding contains food waste, leaves residue, causes unpleasant odours, attracts flies and has damaged her property.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council’s response to Mrs X’s complaint accepts there had been delays and communication failures. It partly upheld the complaint. The Council says further investigation and potentially significant drainage works were required.
8. We will not investigate this complaint. This is because the injustice alleged by Mrs X is damage to her property arising from flooding and drainage defects. Determining whether the Council is legally responsible for that damage, whether it has been negligent, and what compensation should be paid would require findings on liability which is a matter for court.
9. The courts are better placed than the Ombudsman to consider evidence, determine disputed facts, assess expert drainage evidence where necessary, and award damages for any proven property damage. The Ombudsman has no powers to determine legal liability nor compel Councils to award compensation. It is therefore reasonable to expect Mrs X to use her suitable alternative remedy and go to court.

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Final decision

10. We will not investigate Mrs X’s complaint as it is reasonable to expect her to go to court.

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Investigator's decision on behalf of the Ombudsman