The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council not maintaining a drain next to his land. There is not enough evidence of fault in the decision-making process the Council followed to determine it is not responsible for the maintenance of the watercourse to warrant an investigation.
The complaint
Mr X has an uncovered man-made drain next to one of the boundaries of his property. He complains the Council has failed to take responsibility for the maintenance and safety of the drain.
Mr X considers the drain is a danger to life and a health hazard and it has previously flooded in 2013. He wants the Council to repair and maintain the drain.
The Ombudsman’s role and powers
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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision-making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, online maps and the Ombudsman’s Assessment Code.
My assessment
We may only go behind a council’s decision where there has been fault in its decision-making process which, but for that fault, there would have been a different outcome.
In response to Mr X’s complaint, the Council viewed Land Registry documents for the land next to each section of the watercourse. The documents show who is responsible for each section of the drain next to their property, including the section next to Mr X’s property. The Council has explained this is known as ‘riparian’ ownership.
Mr X says the drain does not appear on ‘any landlord property’, which implies his deeds of ownership do not include the drain. He considers this means that, because it is a drain, ownership and responsibility for its maintenance must be the Council’s. The Council has referred Mr X to national government information which states a person who owns land bordering a watercourse would normally own it up to its centre. This would only not apply if their property or land deeds mentions the watercourse and says otherwise.
Mr X says the Council cleared flooding at the watercourse in 2013. He considers this means the Council took on responsibility for the drain. The Council says it did emergency piling and repair works there under its Land Drainage Act 1991 duties There is no section of the 1991 Act which indicates a council takes ownership of, or responsibility for, a watercourse by doing such emergency works.
Officers gathered relevant evidence of ownership and took account of appropriate national government law and guidance to reach their decision. There is not enough evidence of fault in the decision-making process the Council used to conclude it is not responsible for the repair or maintenance of the watercourse to justify us investigating. I realise Mr X disagrees with that decision. But it is not fault for a council to properly make a decision with which someone disagrees.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council used to warrant us investigating.
Investigator's decision on behalf of the Ombudsman