The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Ms Y to approach the court about the matter and the court are better placed to consider the complaint.
The complaint
Ms Y complained the Council is holding her liable for the cost of works to repair a void in the highway after extension works were completed on her property, despite her having sought guidance prior to the works on what was needed from the Council, which she then followed.
Ms Y says this has caused her distress and financial worry.
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 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))
How I considered this complaint
I considered information Ms Y provided and the Ombudsman’s Assessment Code.
My assessment
Ms Y complained to the Council after she was told she would be liable for the cost of works to repair a void which the Council says was caused during construction of an extension to Ms Y’s home. Ms Y disputes liability for the costs of the necessary works, as she says the Council were consulted before the extension was built and its guidance followed relating to drainage.
Under s133 Highways Act 1980, Council can recover costs of repairs to the highway from those who cause damage to it. Where a person disputes their liability for the costs, it is for that person to dispute this through the courts. We cannot decide liability in such situations, where the courts can.
As the courts can decide liability where we cannot and there is a right to dispute such charges in court, it is reasonable to expect Ms Y to use this right and approach the court. This is particularly as the court is better placed to consider the complaint. We will therefore not investigate this complaint.
Final decision
We will not investigate Ms Y’s complaint because it is reasonable to expect Ms Y to approach the court about the matter and the court are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman