The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about damage to her property. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Miss X to go to court to determine the Council’s liability for the damage to her property.
The complaint
In summary, Miss X says the Council failed to carry out works needed to a path to ensure her garden and garage do not suffer flooding. She would like to be paid for the damage to her property.
The Ombudsman’s role and powers
We provide a free service but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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. I considered the Ombudsman’s Assessment Code.
My assessment
The Council has denied liability for the damage caused to Miss X’s property. It has listed actions it took following Miss X’s reports. It also advised her to seek legal advice if she wishes to pursue her claim further.
We will not investigate because the matter of liability for damages is usually decided in the courts. It is reasonable for Miss X to go to court to protect her private property. The court is best placed to decide if the Council is liable for the damage and if Miss X is entitled to claim the repair costs.
Further, if Miss X or any other resident is concerned about a particular highway being in disrepair, there is a legal process available to use. The person affected can apply to the magistrates’ court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. The courts are in the best position to decide whether a local highways authority has met its statutory duty to maintain a highway.
Final decision
I will not investigate. This is because it is reasonable to expect Miss X to go to court to decide the Council’s liability for the damage to her property.
Investigator's decision on behalf of the Ombudsman