Mr X’s property caused by disrepair of the highway because there is an alternative remedy available in court it would be reasonable for Mr X to use.
The complaint
Mr X complains that: the Council has not properly repaired and maintained the road outside his property, the heavy use of the road worsens the disrepair, and this has caused damages to his property, the Council has not repaired the damages to his property, and the Council has not dealt with his claim form in a timely manner.
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) We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended) It is not a good use of public funds to investigate complaint handling when we are not investigating the substantive matter complained of.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X lives on a busy road likely to be in regular use including by public transport.
Mr X complains about potholes and cracks in the road directly outside his property. He says that vehicles driving over the damage in the road have caused vibrations to occur that have damaged his property in various ways.
There is an alternative remedy in court for Mr X’s complaint about damage to the highway and resulting damage to his property.
There may be cost implications for Mr X taking the Council to court. Sometimes household insurers cover court costs. If Mr X is successful in court, he could ask the court to award him his costs.
Only a court can decide whether the Council was negligent in its repair of the highway, the impact of the damage on Mr X’s property and what financial remedy, if any, Mr X should be offered.
Section 58 of the Highways Act 1980 provides the Council with a legal right to defend itself in court against claims arising from highway disrepair, and we have no power to remove that right.
Mr X has not suggested it would be unreasonable for him to take the Council to court.
The Council have accepted fault in its handling of Mr X’s claim. They have made an offer of compensation to Mr X and explained what needs to happen next. If we are not investigating the substantive matter of the complaint, there is no good reason for us to investigate the delay in the Council processing Mr X’s claim.
Final decision
We will not investigate Mr X’s complaint because: there is an alternative remedy in court that it is reasonable for Mr X to use, if court action has already started we cannot investigate these matters either now or after the court action ends as they are closely linked to the matters subject to the court action, and it is not a good use of public resources to investigate the delay in processing Mr X’s claim when we are not investigating the substantive matter Mr X complains about.
Investigator's decision on behalf of the Ombudsman