The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about water from the Council’s highway damaging his wall. The core of the complaint is an issue of legal liability for the claimed property damage. We cannot decide such liability claims. The Council’s insurers have rejected Mr X’s claim, so the only body which can now determine liability is the courts. It is reasonable for Mr X to pursue his claim in court. There is not enough evidence of Council fault in its decision not to visit Mr X and further discuss his claim.
The complaint
Mr X lives on a road on a hill. He complains the Council has: denied liability for damage to his wall which he says is being caused by water from the Council’s highway; refused to meet on site to assess the damage and discuss the issues.
Mr X says the water from the highway is causing damage to the wall. He says stress from the matter contributed to his health problems, which in turn led to him giving up work. Mr X wants the Council to accept liability for the damage to his property, replace the damaged wall, a footpath, associated garden walls and some steps. He also wants the Council to install a concrete kerb in the highway to prevent future water damage.
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) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
The core of Mr X’s complaint is a claim that the Council is liable for damage to the wall. That is an allegation of legal liability for damage to his property. Mr X made a claim to the Council’s insurers, which they rejected.
It would be reasonable for Mr X to pursue his damage claim and the outcomes he seeks in court. I say this because the Ombudsman cannot resolve this legal dispute between the Council and Mr X. We cannot make a decision on the core question of whether the Council is legally liable for the damage to Mr X’s property. Since the Council’s insurers have rejected his claim, the only body which can make a ruling on it is the courts. Were we to investigate, we would also only be able to make recommendations to the Council, while the courts may make legal rulings which are binding on the parties.
I note Mr X says the Council should visit him to view the wall and discuss the issues. The Council appointed people to assess the matter on its behalf, in response to Mr X’s insurance claim. Officers consider there would be no benefit from further visits or discussions as they have rejected Mr X’s claim. That is a decision officers are entitled to take and there is not enough evidence it involved any Council fault. In any event, the issues Mr X would wish to discuss would be matters of legal liability for the wall damage, which would be the subject of any further claim he may make against the Council at court. As explained above, it would be reasonable for Mr X to pursue that route to have a further legal consideration and discussion of his claim.
Final decision
We will not investigate Mr X’s complaint because: the core issue is a claim of legal liability for property damage which is for a court to determine, and it is reasonable for him to pursue his claim at court; there is not enough evidence of Council fault in its decision not to visit Mr X and further discuss his claim.
Investigator's decision on behalf of the Ombudsman