The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that her property is being damaged due to the Council’s failure to maintain the highway. This is because it is reasonable for Mrs B to put in a claim to the Council’s insurers, and if needed, take the Council to court.
The complaint
Mrs B complains that her property is being damaged because the Council is failing to maintain the adjoining road. Mrs B says there are two defects which collect water and this results in her property being splashed with water each time a vehicle drives over the defects. Mrs B says this has caused damp inside her house and she is concerned that the external wall will eventually collapse. Mrs B would like the Council to repair the road defects which are causing the damage.
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 Act 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 Mrs B and viewed this location on Google Streetview.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B complains her property is being damaged because of the Council’s failure to maintain a road it is responsible for. So in effect, Mrs B complains the damage is the result of negligence by the Council.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
In addition, only a court can decide if an organisation has been negligent and so should pay damages.
We cannot recommend actions or payments that ‘punish’ the organisation. Also, unlike the Ombudsman, the court can order a party to pay damages.
Mrs B may put in a claim to the Council’s insurers, either directly or via her building insurer, and if needed pursue this matter at court. Because of the seriousness of the issue complained about, I find it is reasonable for Mrs B to take the Council to court if necessary.
So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman