The Ombudsman's final decision
Summary: We will not investigate this complaint about the Agency’s failure to make an adjoining landowner to Ms X take action to prevent the flooding of her property. This is because Ms X has a right to take court action against the Agency if she believes it is liable to pay her compensation and so the complaint falls outside our jurisdiction for this reason.
The complaint
Ms X complains that for three years the Agency did not make an adjoining landowner take action to prevent the flooding of her property. She says she reported problems but these were largely ignored and she has been told the Agency will not pay her compensation and that the matter is a civil one between her and the adjoining landowner.
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 the complainant, including the Agency’s response to the complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
The restriction highlighted at paragraphs 3 applies to Ms X’s complaint. We will not investigate when the complainant has a right to take the matter to court and we consider it reasonable for them to do so.
The Agency has explained to Ms X that it does not own any land in the vicinity of her property and that it is the legal duty of the riparian landowner to maintain the watercourse in question. It said that as its powers are discretionary it was under no legal duty to carry out maintenance works and therefore not liable to pay compensation.
If Ms X believes the Agency has not used its powers properly and she has been caused damage as a result, she can take legal action against it and the court will determine the matter.
Final decision
We will not investigate Ms X’s complaint because she has the right to take court action against the Agency if she believes it is liable to pay her compensation and so the complaint falls outside our jurisdiction for this reason.
Investigator's decision on behalf of the Ombudsman