Summary: The Ombudsman will not investigate this complaint of alleged negligence by the Council which led to the complainant’s home being flooded. This is because complaints of negligence need to be determined by insurers or the courts.

The complaint

1. The complainant, whom I refer to as Ms X, says her home was flooded because the Council failed to maintain the drains. She wants compensation for all the damage to her home and the stress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
3. 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)
4. The courts decide claims of negligence.

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How I considered this complaint

5. I read the complaint and the response from the Council’s insurers. I confirmed there was flooding in the area due to high rainfall. I considered comments Ms X made in reply to a draft of this decision.

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What I found

6. In June there was a period of very wet weather. Weather warnings were issued and there was significant flooding in Kent.
7. Ms X’s home was flooded. Ms X alleges the flood was caused by the Council’s failure to maintain the drains. She says residents had previously complained about blocked drains. Ms X says the Council pumped out the drains the day after the flood. Ms X says her home would not have been flooded if the Council had maintained the drains.
8. Ms X tried to claim on her home insurance but found it had expired. Ms X has to pay for all the damage and repairs.
9. Ms X complained to the Council who passed the matter to its insurers. The insurers said there was no evidence of negligence by the Council. It said the drains were overwhelmed by the volume of water caused by excessive rain. The insurers said there was no evidence the drains were blocked or compromised.
10. Ms X disagrees with the response. She says the Council has been negligent in its maintenance of the drains. She wants the Council to pay for the repairs, expenses, and loss of value of the house. She wants compensation for the stress and frustration.

Assessment

11. I will not start an investigation because claims of negligence need to be determined by insurers or the courts. It is unfortunate that Ms X’s insurance had expired but that does not mean that the Council should cover the costs or that the Ombudsman can or should act as an alternative to the insurance process. Whether there was a failure to maintain the drains, and whether any failure was directly responsible for the flood in Ms X’s home – rather than excessive rainfall causing a flood regardless of the condition of the drains – are matters that need to be judged by insurers or the courts.
12. In addition, the courts would need to assess the value of the losses and how much, if any, were directly caused by any failures by the Council. It is possible that Ms X’s home would still have been flooded regardless of the state of the drains. And, given that the flood would have dumped debris in the drains it is not surprising the Council attended to the drains after the flood.
13. These are not assessments the Ombudsman can make. He does not act as an alternative to the courts or insurers. It is reasonable to expect Ms X to go to court because this is appropriate body to consider claims of negligence and because of the high value of the losses. I appreciate court action is expensive and the best option would have been for Ms X to claim on her insurance. This is not possible but it does not mean we could determine that the Council was directly responsible for the damage to Ms X’s home.

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Final decision

14. I will not start an investigation because this is a matter for the courts or insurers to determine.

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Investigator's decision on behalf of the Ombudsman