The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint about the Council failing to repair a road defect outside her home. This is because it is reasonable for Mrs B to pursue this matter at court.
The complaint
Mrs B complains the Council has failed to properly repair a road defect outside her home. Mrs B says this results in considerable vibrations when large vehicles pass, and cracks are appearing in the walls of her home. Mrs B says other properties are also affected but the Council has decided the defect does not meet the Council’s criteria for repair.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate this complaint. This is because the courts are in the best position to decide the issue Mrs B complains about.
Our role is to consider complaints of administrative fault. We take the view complaints about property damage are best decided by an organisation’s insurers, and if needed, the courts. This is because such complaints are ultimately about whether an organisation has been negligent. Only the courts can decide a negligence claim and order a party to take specific action or pay damages.
Mrs B and any other affected residents may put in a claim on the Council’s insurance for the damage to their homes.
Mrs B may be able to get help from her building insurer to do this. If the Council does not consider it is responsible for the damage, Mrs B may pursue her claim at court.
Because of the seriousness of the issue complained about, I find it is reasonable and proportionate for Mrs B to do this.
Also, if a person considers that a highways authority has failed to maintain a highway it is responsible for, 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.
If the highways authority does not respond in time or does not accept it is responsible for maintaining the road, the person may apply to the crown court for such an order.
Mrs B may use this process to try to get the Council to repair the road. I find it is reasonable for Mrs B to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain the highway. This is not straightforward. Also, unlike the Ombudsman, the court can order the Council to do the required work.
So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman