Summary: Mr Y complained about the Council’s failure to maintain overflowing highway drains which have caused potholes to form which damaged his car. We should not investigate this complaint as it is unlikely we would find fault and it is reasonable to expect Mr Y to raise any claim for damages through insurers and the courts, who are better placed than the Ombudsman to consider this.

The complaint

1. Mr Y complains the Council has failed to act on his report of blocked gullies near his home which is causing flooding. He also complains the Council has not responded to his complaint.
2. Mr Y says the blocked gullies have led to potholes forming on housing association land, which he says have caused damage to his car. He also says the lack of response from the Council has caused him upset and annoyance.

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The Ombudsman’s role and powers

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 there is another body better placed to consider this complaint. (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)
5. 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

6. I considered the information provided about the complaint. Mr Y now has an opportunity to comment on my draft decision. I will consider his comments before making a final decision.

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What I found

7. Mr Y complained to the Council in August 2020, saying the gullies behind his home were regularly blocked, causing flooding. He said the flooding was causing potholes to form. He said he had tried to contact the local water company about the problem but had been told it was the Council’s responsibility to clean the gullies. He therefore asked the Council to clean the gullies to stop the problem occurring. The Council told Mr Y that his local Councillor would raise the issue with the appropriate authorities.
8. Mr Y’s local MP contacted the Council about the issue in September 2020. The Council responded to the MP later that month. It said it had inspected the gullies but any blockages did not meet the levels required for the Council to intervene. It said the gullies were on a cyclical programme for cleaning, which was next due in April and June 2021. This response was sent to the MP, but not to Mr Y. Mr Y complained to us in December 2020.

Analysis

9. 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. The Council has considered Mr Y’s report, inspected the gullies and decided they did not meet the criteria for the Council to intervene and prioritise cleaning. As the Council acted to properly in how it made its decision, considering relevant information through its inspection, it is unlikely we would find fault in this complaint. Consequently, we should not investigate this complaint.
10. 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. As we are not investigating the main part of this complaint, we should not investigate the Council’s handling of Mr Y’s complaint.
11. Further, Mr Y has said the potholes have damaged his car which he has had to pay to repair. Any claim for damages, such as costs for repairs, which Mr Y considers the Council or the housing association to be responsible for, are matters more appropriately dealt with by the courts as they can consider liability, which we cannot.
12. From the information provided, it is clear that the Council advised Mr X to submit a claim if the damage was caused on the public highway. It was reasonable to expect Mr Y to pursue any claim through insurers and ultimately the courts if no liability was accepted. Consequently, we should not exercise discretion to investigate this complaint.

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Final decision

13. We should not investigate this complaint as it is unlikely we would find fault and it is reasonable to expect Mr Y to raise any claim for damages through insurers and the courts, who are better placed than the Ombudsman to consider this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman