The Ombudsman's final decision
Summary: We will not investigate this complaint about highways repairs and maintenance. The court is better placed to consider the complaint, and it is reasonable to expect Ms X to exercise her right to go to court.
The complaint
Ms X complains the Council failed to maintain a public footpath near her home, which has caused a puddle of freshwater to pool against the wall of her property. Ms X says the Council carried out repair works and tried to direct the rainwater away from her property, but the works were not successful. Ms X complains the puddle of water is causing damp in her home and creates a slip hazard in winter when the water freezes.
Ms X complains the Council ignored or refused to investigate her subsequent reports and, in response to her complaint, told her it was her responsibility to address the issue.
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 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
Ms X has told us that the water pooling by her property has damaged her property, with the water causing damp. She is worried this will affect the future sale of the property.
The Council said it previously tried to reduce the water pooling next to Ms X’s property as a goodwill gesture when it resurfaced the footpath. But, the Council told her it had not accepted liability for the issue. It said it was not responsible for preventing the water from reaching her property. The Council said the footpath was in good condition and suitable for its intended use.
At its core, Ms X’s complaint is one of negligence by the Council. Ms X says her insurers refused to address the issue and the water company decided it was not responsible either. Ms X says the Council is responsible.
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
We cannot decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, are matters more appropriately dealt with by the courts.
There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income and reasonable adjustments can be made if necessary. It is therefore reasonable for Ms X to be expected to use her right to go to court about this matter. Ms X may first lodge her claim with the Council’s own insurers. If the claim is not accepted or resolved to her satisfaction, she can place it before the courts to pursue the accountability she seeks. We will not investigate this complaint.
As we are not investigating the substantive issue, it is not a good use of public resources to investigate how the Council dealt with Ms X’s complaint. We will not investigate.
Final decision
We will not investigate this complaint about highways repairs and maintenance. The court is better placed to consider the complaint, and it is reasonable to expect Ms X to exercise her right to go to court.
Investigator's decision on behalf of the Ombudsman