The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s response to a road defect which Mr X says is causing vibrations and cracks in his property. This is because Mr X has a right to take the Council to court which places the complaint outside our jurisdiction.
The complaint
Mr X complains the Council is not upholding its responsibility to repair a serious road defect he has reported which causes vibrations and cracks in his property when heavy vehicles drive over it. He says the Council has advised him his property is too far away to be affected by the defect and that he will need to pay for a structural engineer’s report to support his claim.
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 the Council’s response to his complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
The restriction highlighted at paragraph 3 applies to Mr X’s complaint. If he believes the Council has failed to maintain a highway which it is responsible for, he has a right to apply to the Magistrates’ Court for an order requiring the Council to take action to bring the highway up to standard.
If he believes the Council is responsible for damage caused to his property as a result of the road defect he can make an insurance claim against it which if rejected he can appeal to either the County or High Court depending on the amount claimed.
As Mr X an alternative remedy to the courts which we would reasonably expect him to use, the complaint falls outside our jurisdiction and will not be investigated.
Final decision
We will not investigate Mr X’s complaint because he has a right to take the Council to court which places the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman