Summary: We will not investigate Mrs X’s complaint about how the Council handled her complaint. This is because it is not a good use of public resources to investigate complaints handling alone if we are unable to deal with the substantive issue. The substantive issue relates to liability for damage to property, which is for the courts.

The complaint

1. Mrs X complained the Council failed to provide a clear final position regarding its liability for a drain outside her property and delayed when responding to her complaint around the same matter.
2. Mrs X said this caused emotional distress and delayed resolution of the issues with the drain. She wanted the Council to confirm its position regarding its responsibility for the drain and acknowledge errors in its complaints handling procedure.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 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)
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)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X contacted the Council to query its responsibility for a collapsed drain outside the boundary of her property which she said was causing issues and safety concerns near her home.
8. The Council told Mrs X the drain was on private land, and it was not responsible for the repair or maintenance of the drain.
9. Mrs X complained to the Council and asked it to provide a clear final position regarding its liability for the drain and explain why it had previously carried out maintenance works if it was not responsible for the drain. Mrs X says the Council delayed in responding to her complaint and failed to provide a clear and final position regarding liability.
10. The Council responded to Mrs X and re-affirmed it was not responsible for the drain, adding that now it had confirmed this position, it would cease any future maintenance works on the drain.
11. Mrs X characterised her complaint to us as being about the Council’s complaint-handling only. We will not investigate Mrs X’s complaint; this is because it is not a good use of public resources to investigate complaints about complaint procedures in isolation if we are unable to deal with the substantive issue.
12. For the avoidance of doubt, in any event the Ombudsman will not normally consider complaints about damage to property as these are really negligence claims. We would also not therefore investigate the substantive complaint relating to the Council’s responsibility for the drain. This would need to be considered by a court should the insurance process not resolve the matter. I have seen no reason Mrs X could not use her right to take the matter to court if she wishes to dispute liability for damage to her property.

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Final decision

13. We will not investigate Mrs X’s complaint because it is not a good use of public resources to investigate complaints handling alone if we are unable to deal with the substantive issue. In this case, the substantive matter relates to liability for damage to property, which is a matter for the courts.

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Investigator's decision on behalf of the Ombudsman