Summary: We will not investigate this complaint about highway drainage and maintenance because Mr Y has started court action about the matter, the issues could reasonably have been mentioned as part of legal proceedings in a closely related matter and the complaint is late without good reason to exercise discretion to investigate it now.

The complaint

1. Mr Y complains the Council has failed to install silt traps within its highway drainage to prevent blockages further downstream despite advice to do so which is causing him to need to clean out a culvert on his land by hand because of silt collecting off the highway. He also complains the Council has failed to ensure proper maintenance of its drainage system. He also complains the Council wrongly restricted his contact during the litigation process.
2. Mr Y says this has led to upset and worry as well as his property being flooded.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
4. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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My assessment

7. Mr Y began proceedings about the issue he has complained about to us in 2021. He has recently made a settlement with the Council on the matter and brought the proceedings to an end.
8. Mr Y’s complaint and the court proceedings related to the drainage problems and silt traps referred to in paragraph one. As Mr Y has started court action about the same matter, we cannot investigate his complaint as we do not have the legal power to do so. Further, as the issues raised with us for investigation have been or could reasonably have been raised as part of legal proceedings in a similar, if not the same, matter we will not investigate.
9. Mr Y has also complained about the restriction of his contact with the Council which continued for over a year from July 2022 to November 2023. He has said the Council did this in response to him taking legal proceedings against it in 2021. He says he had to contact his councillor on a private email address to confirm why he was unable to correspond with the Council or with local councillors. Shortly after the issue was raised with the Council in November 2023, the restriction was removed.
10. Mr Y chose not to bring the matter to us in 2023 due to the ongoing legal matter. He has brought this and his other complaints to us now, because the legal proceedings are coming to an end. However, he became aware of the issue in 2023.
11. The law says people should normally complain to us within 12 months of becoming aware of an issue. Complaints brought to the Ombudsman more than 12 months after someone becomes aware of something a council has done are considered late. We cannot investigate late complaints unless we decide there are good reasons.
12. As Mr Y has been aware of his reason to complain for over 12 months, the complaint is now late. We have discretion to disapply the rule outlined in paragraph five where we decide there are good reasons.

While Mr Y waited until the end of the legal proceedings to come to us, he could reasonably have brought the matter to us earlier, even while the proceedings were ongoing. We would potentially have been able to consider investigating the complaint at that stage, separately from the legal matter.

Consequently, as there was nothing to prevent Mr Y from complaining to us, Mr Y has not provided any good reasons why he did not bring his complaint to us within 12 months of knowing about the matter. It is reasonable to expect him to have complained sooner. Therefore, we will not exercise discretion to investigate this complaint.

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Final decision

13. We will not investigate Mr Y’s complaint because Mr Y has started court action about the matter, the issues could reasonably have been mentioned as part of legal proceedings in a closely related matter and the complaint is late without good reason to exercise discretion to investigate it now.

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Investigator's decision on behalf of the Ombudsman