The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council has failed to repair pothole damage on a main road which is causing vibration and damage at his property and failed to deal competently with his complaints. It is reasonable for Mr X to use his legal remedies at court if he wants the council to repair the highway or if he wants to claim damage to his property. There is insufficient injustice to investigate the complaint handling.
The complaint
Mr X complains the Council has failed to repair potholes on a nearby main road which is causing his house to shudder and damage to a ceiling. Mr X says the Council has failed to take his reports seriously. Mr X says highways have visited the location three times but one of the two potholes he identified has not been repaired.
Mr X complains the Council has failed to reply to correspondence and not handled his complaints properly. He says the stage 1 complaint reply was incompetent.
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 including correspondence with the Council. I have considered his reply to my draft decision statement.
My assessment
I will not investigate Mr X’s complaint for the following reasons: The complaint is outside the Ombudsman’s jurisdiction because Mr X has a remedy at court (see paragraphs 3 and 4 above). The Highway Act 1980 (sections 56-58) says a person can apply to court for an order to repair the highway. The Council would have a defence that it has taken reasonable care. A claim for damage to property can also be made at court.
I consider it reasonable for Mr X to use his legal remedies. The courts have the the power to direct the Council to repair a road and can consider any claim and award damages. Mr X’s information says his property is thirty yards from the main road and there are two intervening properties. It would be for a court to assess evidence of damage to his property and the cause. The Council has advised Mr X he would need a structural report and has provided details of how he can make a claim with it.
Where we are not investigating the substantive matter we would rarely investigate communications or complaint handling. There is insufficient injustice or public interest to do so here. We cannot investigate actions on the substance of the complaint where the matter is outside jurisdiction. In this case we could not investigate any complaint conclusion on the highways’ actions. The Council has apologised to Mr X for failing to reply to his communications late last year and has given advice to the officer.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council has failed to repair pothole damage on a main road which is causing vibration and damage at his property and failed to deal competently with his complaints. It is reasonable for Mr X to use his legal remedies at court if he wants the council to repair the highway or if he wants to claim damage to his property. There is insufficient injustice to investigate the complaint handling.
Investigator's decision on behalf of the Ombudsman