The Ombudsman's final decision
Summary: We will not exercise discretion to investigate this complaint about Mr X’s claim that traffic using an adjacent road has caused structural damage to his boundary wall. It was received outside the normal 12-month period for investigating complaints and there is no evidence to suggest that Mr X could not have complained to us sooner.
The complaint
Mr X says his boundary wall has been affected by traffic use of the adjacent road which is at a higher level and has caused it to lean over time. He says the Council should contribute towards the cost of structural reports he has paid for and the rebuilding of the wall and its foundations.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says his boundary wall is leaning due to the impact of traffic on adjacent public highway. The property was built in the 1870’s but the boundary wall and the road may be of a later date. He contacted the Council in 2017 over his concerns about the condition of the wall and the Council told him that despite his having had a structural survey carried out, it did not accept that the damage was due to the highway.
Mr X made a further complaint and the Council referred him in early 2018 to the Ombudsman. He did not submit a complaint to us until four years later which is outside the normal 12-month period for accepting complaints. There is no evidence to suggest that he could not have complained to us sooner.
The claim of damage to private property is a civil matter and even had Mr X complained to us in 2018, it would not be a matter which the Ombudsman could determine. Only insurers and the courts can decide liability for damage caused by the legal tort of negligence.
Final decision
We will not exercise discretion to investigate this complaint about Mr X’s claim that traffic using an adjacent road has caused structural damage to his boundary wall. It was received outside the normal 12-month period for investigating complaints and there is no evidence to suggest that Mr X could not have complained to us sooner.
Investigator's decision on behalf of the Ombudsman