Decision : Closed after initial enquiries
Decision date : 24 Mar 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr B’s complaint about the Council’s failure to fix the flooding issues on a road outside his home. This is because it would be reasonable for Mr B to seek a remedy through the courts.
- Mr B says he first contacted the Council about the flooding issues outside his home in December 2017, but the Council first denied there was a problem. Mr B says he kept complaining until the Council agreed in 2018 the area around his property was prone to flooding.
- Mr B says the Council then told him it had included his concern in the 2019/20 budget and that it would fix the flooding issue that year.
- Mr B says the Council has now cancelled the works to his area due to excessive flooding and has said it cannot give a timescale for completion. Mr B also says if the Council had dealt with his concern when he first complained then his issue would have been resolved before this excessive flooding. He says this is because it would be very cheap to provide a temporary solution.
- Mr B has also complained the Council did not follow its complaints procedure as it took more than the time it promised it would take to deal with his complaint.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets 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
- As part of my assessment I have
- considered Mr B’s complaint and the complaint correspondence between Mr B and the Council.
- issued a draft decision inviting Mr B to reply; and
- considered Mr B’s response to my draft decision.
What I found
- Mr B says he first complained he had an issue with flooding in December 2017. He says the Council initially denied there was a problem but eventually accepted there was an issue in 2018.
- In January 2019 Mr B wrote to the Council to say he was dissatisfied with its response to his complaint.
- The Council provided a response in March 2019 apologising for the delay in repairing the drainage. However, it said the 2019/2020 planned drainage programme had just been confirmed and the area outside Mr B’s property was on this delivery programme. The Council also said it did not have enough funding to deal with all flooding issues immediately and it needed to prioritise
- Mr B made a further complaint to the Council about the same issue in December 2019. The council responded in February 2020. In its response it stated there had been high rainfall in 2019/2020. As a result, it had received a huge influx of new flooding reports which included sites where people had flooding in their homes. The drainage team had had to focus on trying to deal with sites on high speed roads where there was a serious risk to life or risk to public health. Therefore, it had to defer the sites it had hoped to fund in this year’s programme. It said this postponement which included the site outside Mr B’s home was likely to be protracted.
- The Council went on to say it appreciated the inconvenience caused by the flooding outside Mr B’s home however it could take years to secure funding.
- The Highways Act 1980 requires the Council to maintain the highway. Section 56 also gives individuals the right to serve formal notice on the Council to repair a highway. If this fails, they can apply to the magistrates court who will decide whether the Council has failed to maintain the highway.
- Any claim for damage from the condition of the highway, if not resolved, must be decided in the courts too, because Section 58 of the Highways Act allows the Council to put forward a defence to such claims in court.
- Mr B says it would have been cheap for the Council to provide a temporary solution. He also says if the council had dealt with this at the time he first complained, his issue would have been resolved before the excessive flooding. However, the Ombudsman cannot take away the Council’s right to defend itself in court by investigating.
- Mr B has also complained the Council failed to follow its complaint procedures in terms of timescales.
- The Ombudsman will not investigate this complaint. It is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.
Investigator's decision on behalf of the Ombudsman