Summary: We will not investigate the Council’s response to Mr X’s complaint about suffering damage to his property after a drain was blocked on the highway. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to go to court to determine any Council liability. And, there is no fault by the Council in not meeting Mr X’s preferred outcomes.

The complaint

1. In summary, Mr X says a blocked drain on the highway caused over £10,000 worth of damage to his home. He says he is suffering stress every time it rains.
2. Mr X says the Council has told him it is his neighbour’s responsibility to clear the drain. Mr X accepts this but says the blockage arises from debris entering the highway.
3. Mr X would like the Council to act against his neighbour to compel them to clear the drain and interpret highways/drain legislation on his behalf with a view to resolving the problem. He would also like to be compensated.

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The Ombudsman’s role and powers

4. We provide a free service but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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)
6. 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.
• we cannot achieve the outcome requested.

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

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How I considered this complaint

7. I considered information provided by the complainant. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not investigate any Council liability for Mr X’s property damage as it is reasonable to expect Mr X to take the Council to court. The courts are best placed to decide liability and claims for damages.
9. With respect to the Council’s actions in relation to Mr X’s neighbour, the Council has no obligation to act against his neighbour or interpret the law with a view to advising Mr X on his next steps. This is a civil matter for Mr X to pursue in court against his neighbour to protect his private property interests. There is no evidence of fault by the Council warranting an investigation.

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Final decision

10. I will not investigate. This is because it is reasonable to expect Mr X to go to court to determine the extent of the Council’s liability for his claim. And there is no fault by the Council in not meeting Mr X’s preferred outcomes.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman