The core issue is an allegation of legal liability for damage to Mrs X’s property, which only the Council’s insurers or a court could decide. It is reasonable for Mrs X to take her complaint about the Council’s responses to her information requests to the Information Commissioner’s Office.
The complaint
Mrs X lives in a property next to a culvert, which feeds into a stream. Mrs X complains the Council: repaired the culvert in 2014 in a way which increased the water’s flow, causing increased erosion to the bed and sides of the stream; failed to plan the repairs to ensure they did not impact negatively on the stream and neighbouring properties; failed to properly document the repairs process; has not provided her with documents she has requested about the culvert repairs.
Mrs X says the repairs increased the water’s flow, causing increased erosion to the stream which is a threat to her property. She wants the Council to provide the information she has asked for about the repairs (and if it is not available, to explain why), and explain why proper legal process was not followed when repairing the culvert. Mrs X also wants the Council held responsible for breaking the law by not following correct processes when doing the repairs. She wants the Council to pay in full or contribute to the cost of repairing the stream erosion which she considers has been caused by its culvert works.
The Ombudsman’s role and powers
We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6)) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by Mrs X, and the Ombudsman’s Assessment Code.
My assessment
Mrs X says the stream erosion is of concern because of possible impact on her property. She does not say the stream, as allegedly affected by the culvert repairs, has already caused damage to her property. But in any event, should such damage happen, this would be an allegation that works done by the Council led to damage to her property, and a claim that the Council is liable for that damage.
The Ombudsman cannot make rulings on liability for property damage. That would be a legal issue which could only be determined by an insurance claim to the Council or, if the claim is rejected, by putting a case before the court. I note Mrs X considers the Council did not comply with relevant laws when planning, implementing and recording the culvert works. This is part of Mrs X’s view that those works have caused or will cause damage to her property, so it could form part of any insurance or court claim.
It would be reasonable for Mrs X to pursue this matter to court if required as the court could provide the legal liability decision she seeks. That ruling would also be enforceable and binding on the parties, unlike an Ombudsman decision which could only make recommendations Mrs X is dissatisfied with the Council’s responses to her requests for information about the culvert works. The Council says it has provided what it has. If Mrs X remains dissatisfied about the information the Council has given her, she can make a Freedom of Information request. If the Council’s response still does not meet her needs or expectations, she may take that issue to the Information Commissioner’s Office (ICO). The ICO is the specialist body created by national government to deal with complaints about freedom of information and to interpret the relevant legislation. Mrs X would be able to appeal against the ICO’s decision notice to the First Tier Tribunal (Information Rights), should she dispute its decision. For these reasons, it would be reasonable for Mrs X to refer this part of her complaint to the ICO.
Final decision
We will not investigate Mrs X’s complaint because: the 2014 culvert repairs issue is a matter of legal liability for damage to her property, which only the Council’s insurers or a court could decide; it would be reasonable for her to take the complaint about the Council’s replies to her information requests to the ICO.
Investigator's decision on behalf of the Ombudsman