Summary: We will not investigate this complaint about the Council failing to adopt or maintain an area along a stream near the complainant’s house. This is primarily because it is reasonable to expect the complainant to have contacted us sooner. There is also not enough evidence of fault by the Council in respect of the current condition of the stream area, we cannot determine if the Council has been negligent, and we cannot investigate the actions of the parish council.

The complaint

1. Mrs X complains the Council has failed to adopt, or adequately assist with improving the safety of, the area along a stream near her house. She says it is of concern to the community, and may have contributed to her husband losing his life.

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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 can 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. So, we do not start an investigation if we decide:
• we are unlikely to find enough evidence of fault to justify investigating, or

• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. And 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)
5. Finally, whilst we can investigate complaints about some councils and certain other bodies, we cannot investigate the actions of bodies such as parish councils. (Local Government Act 1974, sections 25 and 34(1), as amended)

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How I considered this complaint

6. I considered information provided by Mrs X and the Council, which included the Council’s 28 August 2023 complaint response.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. I can understand why Mrs X is concerned about the maintenance and safety of the stream which runs through the residential estate where she lives.
9. But the time restriction detailed in paragraph 4 above appears to apply to her complaint. The planning permissions and legal agreement for the residential estate date back to the late-1990s/early-2000s, and I understand Mrs X purchased her property around 20 years ago. Any concerns Mrs X had about the Council’s planning decisions, a breach of a planning condition, and/or a failure to adopt the stream area, are therefore out-of-time, and I see no reasons to exercise discretion to investigate these issues now.
10. I am also mindful the Council does not own the area along the stream, and it has no power to make the landowner/developer hand over the ownership or responsibilities for its maintenance/management. I therefore see no evidence of fault in respect of that part of the complaint.
11. We would also not be able to reach a judgement on whether the Council has been negligent or is liable for what happened to Mrs X’s husband; these would be matters for a court to decide.
12. Finally, the Ombudsman has no power to investigate any parts of the complaint about the Parish Council’s actions relating to this matter.

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Final decision

13. We will not investigate Mrs X’s complaint primarily because it is reasonable to expect her to contact us sooner, and for the other reasons detailed above.

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Investigator's decision on behalf of the Ombudsman