Summary: Mr X complains about the Council’s failure to deal with flooding on a footpath close to his property. The Ombudsman will not investigate his complaint. This is because there is not enough evidence of fault by the Council to warrant an investigation by the Ombudsman.

The complaint

1. Mr X complains the Council has failed to deal with a footpath close to the front of his property which he says regularly floods.

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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 or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

5. Mr X complains the Council has failed to deal with flooding on a footpath close to the front of his property. The Council says the footpath has not yet been ‘adopted’ and so it is the responsibility of the firm developing the area where Mr X lives. The Council says it has been in touch with the developer and has explained it would not ‘adopt’ the footpath in its current condition.
6. The Council has told the Ombudsman and Mr X that the developer has already carried out some remedial work, but this has not solved the problem. The Council says the footpath has been closed until the problem is put right. It has asked the developer on two occasions to ‘re-profile’ the path.
7. Councils do have discretionary powers to carry out work to private footpaths - but this rarely happens. In response to the Ombudsman the Council said:

“this route is not a privately maintainable footpath as prescribed.  It is a new path within a development that is under construction, not all areas of the site have the final surfacing applied yet and remedial works are ongoing throughout the scheme.  It is because of this that it would not be reasonable to undertake works within the site whilst the developers are still undertaking highway works themselves and have agreed that this footpath will be addressed as part of these works.”

8. The Ombudsman does not look at all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include the likelihood of finding fault and what we could achieve. We cannot question decisions by a council if there is no fault in the decision-making process itself.
9. I understand Mr X is frustrated by the flooding close to his property. But, as the Council says, it is the responsibility of the developer. The Council has contacted the developer and asked it to carry out remedial work. It has explained why it cannot carry out remedial work, and I see no fault in how the Council has reached this decision. An investigation by the Ombudsman is not therefore appropriate.

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Final decision

10. The Ombudsman will not investigate Mr X’s complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman