The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint the Council caused damage to her home, in 2018, by failing to maintain or repair a storm drain under the highway. Mrs X has a legal remedy at court which it is reasonable for her to use if she wants to claim damages. Mrs X complains late about actions between 2018 and early 2021.
The complaint
Mrs X complains the Council failed to maintain a storm drain which caused flooding to the family home in early 2018 and damage costing over £33,000 to repair. Mrs X says the Council’s site visits and actions failed to repair the storm drain and it did not do so properly until January 2021. Mrs X says she employed a solicitor and obtained expert advice when the Council told her she would need to prove the drain had caused the damage. She says having gone to great expense the Council has rejected her claim and told her to go to the claims court. Mrs X says her family had years of misery and the Council should cover her costs.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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)
How I considered this complaint
I have considered Mrs X’s information and comments and discussed the complaint with her by telephone. I have viewed internet street scene views of the area.
My assessment
I will not investigate Mrs X’s complaint for the following reasons: Mrs X has a legal remedy at court which places the complaint about damage outside the Ombudsman’s jurisdiction (see paragraphs 2 and 3 above). I consider it reasonable for Mrs X to use her legal remedy if she wishes to pursue a claim for damages. A court has the power to determine what happened and award damages if, as Mrs X believes, the Council was negligent.
A complaint about the repairs to the highway drain between 2018 and early 2021 is outside the Ombudsman’s jurisdiction because Mrs X complains late, outside the ‘permitted period’ of 12 months (see paragraph 4). I will not exercise discretion to investigate because Mrs X could have complained sooner. As explained above a claim for damages is for a court. Mrs X has not lived at the property in the last 12 months and there is no ongoing repair issue.
Final decision
The Ombudsman will not investigate Mrs X’s complaint the Council caused damage to her home, in 2018, by failing to maintain or repair a storm drain under the highway. Mrs X has a legal remedy at court which it is reasonable for her to use if she wants to claim damages. Mrs X complains late about actions between 2018 and early 2021.
Investigator's decision on behalf of the Ombudsman