The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council breached a licence agreement covering the impact of a highway drainage scheme on his property, refused to pay related legal costs, briefed against him in a press release, and wasted public money. Mr X can reasonably use his legal remedies at court.
The complaint
Complaint 1: Mr X complains the Council breached a licence agreement covering access and works at his property regarding a highway drainage scheme. Mr X says he first notified the Council of a breach of the agreement in August 2020. He suffered flooding and damage to his property contrary to the protections within the agreement. The Council delayed the project and failed to manage it properly for over two years. Mr X says in 2022 the Council’s contractor completed work at the property but only partially fulfilled the licence obligations. Mr X says he may have problems in the future due to the poor-quality work. Mr X has decided to pay the costs of restoration works to his garden. Mr X says the Council caused him stress, anxiety, expense, and time and trouble.
Complaint 2: Mr X complains the Council has refused to pay legal costs of £1479. He says it was necessary to use a solicitor in 2021 because the Council was pressuring him into a further contract with implications for his property. He says the Council refused to pay legal costs in April 2021 and again in late 2022 following his complaint.
Complaint 3: Mr X complains the Council’s 2020 press statement explaining delays in the scheme contained inaccurate and false statements. He says the Council was briefing against him.
Complaint 4: Mr X complains the Council wasted taxpayers’ money on the drainage scheme. The Council’s reply to his freedom of information (FOI) request shows it spent over £90,000. Mr X says the Council attempted to frustrate the FOI legal requirements.
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 something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
How I considered this complaint
I considered Mr X’s information and comments. The information includes the licence agreement dated 22 October 2018, a 2020 press release about work at the site, legal and complaint correspondence, and photographs.
My assessment
I will not investigate this complaint for the following reasons: Complaints 1, 2, and 3 are outside the Ombudsman’s jurisdiction (see paragraphs 5 and 6 above). Mr X has a legal remedy at court for breach of contract including expenses caused by the Council’s actions. He also has a legal remedy if he wishes to claim defamation or libel.
I consider it reasonable for Mr X to use his legal remedies having considered his reasons for not wanting to go to court: Mr X says the Council has said it will defend any legal action and counter claim which will cause disproportionate costs. Mr X says he wants the Ombudsman to consider ‘the entirety’ of the case. The possibility of losing a claim does not remove the availability of a remedy or the reasonableness of using it. It is for a court to consider if there was a breach of contract and it has the power to award damages.
The press release does not name Mr X or suggest the owner of the property is responsible for the delays. There is no injustice and nothing for the Ombudsman to achieve. If Mr X wants to pursue the matter and claim harm to his reputation he can reasonably go to court.
The Ombudsman cannot investigate complaint 4, about wasting public money, because it affects ‘all or most’ of the people in the area (see paragraph 7). If Mr X is concerned about the Council’s handling of a freedom of information request he may seek advice from the Information Commissioner.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council breached a licence agreement covering the impact of a highway drainage scheme on his property, refused to pay related legal costs, briefed against him in a press release, and wasted public money. Mr X can reasonably use his legal remedies at court.
Investigator's decision on behalf of the Ombudsman