Summary: We will not investigate Mrs X’s complaint about the Council connecting a waste-water pipe from its property to a surface water downpipe and drain shared with her house, and about delay in how it handled the matter. The law prevents us investigating the Council’s actions as a social housing manager regarding the downpipe and drain works. It would therefore be disproportionate for us to investigate any Council delay in its handling of the matter. If a nearby Council-owned tree is found to be the cause of Mrs X’s property damage, this would be a claim that the Council is liable for it. It would be reasonable for her to make a claim to the Council’s insurer, then go to court if required, to pursue the legal liability finding of property damage and redress she seeks.

The complaint

1. Mrs X owns a house which shares a surface water downpipe and drain with a neighbouring property owned and rented out by the Council. Mrs X says the Council connected a waste-water outlet to the pipe and drain. She complains the Council has:
1. overwhelmed the downpipe and drain by attaching its property’s waste-water outlet to it;
2. delayed in investigating and fixing the matter.
2. Mrs X says the situation causes flooding onto her land of foul water from the neighbouring property, which she has to avoid and clear up. She says the floods leave food waste including fat on her property which smells and is unhygienic. Mrs X says the water floods have damaged her outside floor tiles. She says she has been caused further frustration and stress from chasing the Council.
3. Mrs X wants the Council to:
• respond to her enquiry and complaint;
• stop the foul water pipe entering the rainwater pipe and drain;
• repair the damage to the front of her property;
• financially compensate her.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
6. 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)

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How I considered this complaint

7. I considered information from Mrs X, information from the Council about its ownership and rental status of the neighbouring property, and the Ombudsman’s Assessment Code.

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My assessment

8. The Council is a registered provider of social housing. The downpipe and drain is shared between Mrs X and a social housing property owned by the Council. The restriction in paragraph five above prevents us considering anything ‘in connection with’ the Council’s management of its social housing. This includes the work the Council did to the shared downpipe and drain, so we cannot investigate the Council’s actions when doing that work.
9. Mrs X is also dissatisfied with the Council’s delay in handling the matter. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)). It would be a disproportionate use of the Ombudsman’s resources to investigate the Council’s handling of the issue when we cannot consider the substantive underlying matter (the problems caused by the downpipe and drain).
10. The Council has investigated to determine the cause of Mrs X’s reported flooding. A possible cause raised, other than the addition of the waste-water pipe to the downpipe, is root damage to the drain by a Council-owned tree. If investigations indicate the tree roots may be the cause of Mrs X’s flooding and drain issues, we would not investigate. This is because this complaint would amount to a claim that the Council’s tree has caused damage to her property and that the Council is liable for it. To get a finding on this, she would need to lodge an insurance claim with the Council’s insurers. The insurance route would be appropriate, rather than an investigation by us, because for us to form a view, we would need to decide whether the Council is responsible for her claimed property damage. That would be a legal liability question we cannot answer. We cannot make findings on issues of liability for damage to property. Only insurers or the courts can make those decisions. If the outcome of an insurance claim does not resolve the matter to Mrs X’s satisfaction, it would be for the courts to determine her liability claim against the Council. We recognise Mrs X may not wish to go to court. But it would be reasonable for her to pursue that route if required because it is the process she would need to use to get a finding of legal liability. It would also be reasonable for Mrs X to take the matter to the courts because they can issue legally binding orders on the parties, whereas we can only make remedy recommendations to councils.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• the law prevents us investigating the Council’s actions as a social landlord regarding its works to the downpipe and drain; and
• it would be disproportionate for us to investigate the Council’s handling of the matter where we are not investigating the core issue giving rise to the complaint; and
• if it is believed or found to be the Council’s tree has led to her problems, this would be a legal matter which it would be reasonable for her to pursue with insurers or the courts as required, to seek the redress she wants.

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Investigator's decision on behalf of the Ombudsman