The Ombudsman's final decision
Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s pavement next to their property causing it water damage. It would not be unreasonable for them to put their case of legal liability for property damage before a court. We also could not achieve the outcomes Mr and Mrs X seek.
The complaint
Mr and Mrs X live in a property with a Council-owned pavement next to it. They complain the Council’s pavement is too high and does not have adequate drainage.
Mr and Mrs X say rain and standing water from the road splashes and drains into the wall of their property, causing damp and damaging the render. They want the Council to lower the pavement and provide adequate drainage for water to run away from their property rather than collect at the base of the wall.
The Ombudsman’s role and powers
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) We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information from Mr and Mrs X, online images and maps, and the Ombudsman’s Assessment Code.
My assessment
Mr and Mrs X’s complaint is a claim that action or inaction by the Council in the maintenance of its pavement has caused damage to their property. The Council’s position is that it has no statutory duty to prevent water entering Mr and Mrs X’s property from their pavement. Officers consider the Council’s responsibility for maintenance does not extend to doing highway works to stop water going into private buildings.
Mr and Mrs X’s complaint amounts to a legal liability dispute between them and the Council which we cannot resolve. We cannot determine that the Council bears responsibility for the reported damage and must do works to try to prevent it. Only an insurer or the courts can determine questions of legal liability for property damage. Mr and Mrs X may make a claim to the Council’s insurers to seek a remedy for their property damage and its costs to date. If they want a broader ruling on whether the Council is and remains legally liable for the damage and is required by law to do works to its highway to prevent it, this is a case they would need to put before the courts. It would not be unreasonable for Mr and Mrs X to take this issue to court because it is the only body which has the standing and authority to decide legal liability questions and disputes of this kind.
Mr and Mrs X want the Council to do works to its pavement to prevent water going into their property. It follows from the above that this is an outcome achievable from a successful legal claim of liability against the Council, not an investigation by us. If we did investigate, we could not order the Council to do works to its pavement, unlike the courts’ rulings which are legally binding on the parties involved. That we could not achieve the outcomes Mr and Mrs X seek from their complaint is a further reason why we will not investigate.
Final decision
We will not investigate Mr and Mrs X’s complaint because: it would not be unreasonable for them to put their case of legal liability for property damage before a court; and we could not achieve the outcomes they seek.
Investigator's decision on behalf of the Ombudsman