The Ombudsman's final decision
Summary: We will not investigate this complaint about highway repairs as the courts and insurers are better placed to consider the complaint.
The complaint
Miss Y complained the Council has failed to maintain the pipework from the carriageway. Miss Y says this has caused repeated flooding to her property and damage as a result which she has had to pay to have repaired.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 Miss Y provided and the Ombudsman’s Assessment Code.
My assessment
Miss Y made a claim to the Council’s insurers after her property flooded in June 2023. The property has been assessed by a third party and found the drain from the highway had been blocked and had collapsed, leading to the issue. The report suggested passing the case back to the Council’s insurer.
Miss Y said in an email to the Council that she had continued to experience flooding after she had initially reported it to the Council, causing her distress. She is now seeking to recover the costs of repairs following damage to her property and an agreement of regular maintenance for the drain itself to be put in place.
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
In this case, Miss Y has already begun the process through the insurers to make a claim. If the Council disputes liability for the costs of the repairs, Miss Y may consider pursuing the claim through the courts.
There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Miss Y to be expected to use her right to go to court about this matter if necessary. Also the courts can decide who is liable for the costs and if necessary, award damages and potentially costs.
We, however, are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Miss Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts and insurers. We will not investigate this complaint.
Final decision
We will not investigate Miss Y’s complaint because the courts and insurers are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman