The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint that his property has been damaged due to the Council’s failure to re-lay a pavement properly. This is because this complaint is late and it is reasonable for Mr B to pursue this matter via the Council’s insurers, and if needed, the courts.
The complaint
Mr B says his property is affected by water damage because the Council was at fault for the way it re-laid the adjoining pavement. Mr B says the Council initially did not accept responsibility but later said they would take some responsibility and investigate further. But, Mr B says this has not happened and he has not received any further contact. Mr B would like the Council to repair the damage to his property and fix the cause of the problem.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The Act 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 Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council re-laid the pavement outside Mr B’s property in 2016. Mr B says he has been complaining to the Council about water damage caused by the new pavement since then. Mr B commissioned a report in 2017 to support his complaint about water damage.
Mr B complained to us about this issue in May 2024. So, Mr B has not complained to us within 12 months of becoming aware of the issue he complains about.
I have not seen any information to suggest there are good reasons for Mr B’s delay making this complaint. So, the restriction to our powers set out in paragraph 3 of this statement applies to this complaint.
But, even if we accepted that it was not reasonable to expect Mr B to have made this complaint before now, we would not start an investigation.
This is because Mr B’s complaint is that the damage to his property was the result of negligence by the Council.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to put in a claim to the Council’s insurers and if needed, pursue the matter at court, directly or via his insurer.
I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is late and it is reasonable for Mr B to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman