The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because there is another body better placed to consider the complaint.
The complaint
Mrs Y complained the Council has failed to repair a leak outside her property for over four years, despite requests. She is also unhappy with the response to her complaints about the issue, which she says are contradictory and inaccurate.
Mrs Y says the problem has led to her property being damaged which she has had to repair, the footpath to be in a state of disrepair and a potential safety hazard and caused her upset and frustration.
The Ombudsman’s role and powers
It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information Mrs Y provided and the Ombudsman’s Assessment Code.
My assessment
Mrs Y says the leak has led to her property being damaged, in particular towards a retaining wall which has had to be repaired and damage to her driveway and resultant damage to her vehicles.
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to her property and vehicles, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mrs Y to pursue a claim through the Council’s insurance or the courts. We will not investigate this complaint.
Mrs Y has also said that she believes the footpath to now be hazardous as a result of the leak and the damage caused by it, particularly in poor weather.
If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the Magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
Mrs Y may use this process to try to get the Council to repair the footpath. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mrs Y to be expected to use her right to go to court about this matter.
Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway and unlike the Ombudsman, the court can order the Council to do the required work, so it is better placed than us to consider the complaint. We will therefore not investigate.
As we are not investigating the substantive issue, it is not a good use of public funds for us to investigate how the Council has dealt with Mrs Y’s complaint about the leak. We will not investigate this.
Final decision
We will not investigate Mrs Y’s complaint because there is another body better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman