Summary: We will not investigate this complaint about highway repairs because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to go to court if he wants to pursue the matter.

The complaint

1. Mr Y complained the Council has failed to repair a damaged pipe which runs under in a culvert between two properties, including Mr Y’s home. Mr Y says his home has been flooded numerous times because of the problem, which he holds the Council responsible for repairing. He is also unhappy with the Council’s response to his complaints about the issue.

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The Ombudsman’s role and powers

2. We 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. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended)
3. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
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)
5. 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.

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How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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.
8. In this case the Council has carried out significant investigations into the issue over several years. It has concluded that it is not responsible for the repairs needed. It has explained that the repairs would need to be done by the riparian owners of the land. As the Council has listened to the issue, investigated and considered the responsibilities it has, before concluding that it is not responsible for the repair, there is not enough evidence of fault to justify our investigation. We will not investigate.
9. Further, the issue raises questions over who has responsibility for the pipework and culvert and the repairs needed. This would be a property law issue, which would need to consider what rights and responsibilities different parties have over the land next to Mr Y’s home. The law does not allow the Ombudsman to determine such disputes or order repairs to be carried out by a specified party. However, a court can consider this issue, and is able to decide who needs to make the repairs.
10. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use the right to go to court about this matter. We will not investigate.
11. Mr Y has also complained about the differing responses he has received about who is responsible for the repair or the issue, which he feels was misleading. However, as we are unable to deal with the substantive issue, it is not a good use of public funds to investigate how the Council dealt with Mr Y’s complaint and we will not investigate.

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Final decision

12. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigation and it is reasonable to expect Mr Y to go to court if he wants to pursue the matter.

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Investigator's decision on behalf of the Ombudsman