Summary: We will not investigate this complaint about drainage because the courts are better placed to consider the complaint and it is reasonable to expect Dr Y to go to court about the matter.

The complaint

1. Dr Y complains the Council has wrongly denied responsibility for drainage maintenance, ignoring her requests for maintenance and cleaning of the drains. Dr Y is also unhappy with how the Council dealt with her complaint.
2. Dr Y says her property has been damaged because of the issue, causing her inconvenience, ongoing worry and uncertainty and difficulty accessing her property.

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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 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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 Dr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

7. Dr Y complained to the Council about a blocked and damaged drain near her home. The Council has denied responsibility for the drain and has not therefore maintained it or carried out cleansing of the drain. Dr Y says this has led to damage to her property.
8. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
9. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Dr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts.
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 and Dr Y may be able to claim back any costs as part of the claim she makes to the court if she is successful in the substantive matter. Also, reasonable adjustments can be made for access to the service, if necessary, by the courts. It is therefore reasonable for Dr Y to be expected to use her right to go to court about this matter.
11. Dr Y has also said she is unhappy with the Council’s complaint response. As we are not investigating the substantive matter in this complaint, it is not a good use of public resources to investigate how the Council dealt with or responded to Dr Y’s complaint.

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Final decision

12. We will not investigate Dr Y’s complaint because there is another body better placed to consider the complaint and it is reasonable to expect Dr Y to go to court about the matter.

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Investigator's decision on behalf of the Ombudsman