The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s handling of drainage issues affecting Mr X’s land. This is because he has a court remedy against the Council which places the complaint outside our jurisdiction.
The complaint
The complainant, who I refer to as Mr X, complains the Council has not acted in accordance with its legal, public and moral duty to carry out repairs to a damaged drain which is washing away land on his property and the property of other residents.
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)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to the Council about its failure to address drainage issues concerning a drain on its land which is causing his land to be washed away.
The Council explained to Mr X that while its legal position is that it has little or no liability in this matter, it is willing to meet half the costs of the improvement works provided Mr X and the other residents affected meet the other half.
While Mr X may be disappointed with the Council’s offer and wants it to fund the total costs of the works, the question of the Council’s legal liability of a matter for the courts and not the Ombudsman to decide. Mr X can take court action against the Council and as he has this alternative remedy available to him which we would reasonably expect him to use, the complaint falls outside our jurisdiction and will not be investigated.
Final decision
We will not investigate Mr X’s complaint because he has a court remedy against the Council which places the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman