Summary: We will not exercise discretion to investigate this complaint about damage caused to Ms X’s property arising from the Council’s failure to clear overgrown gullys on the public highway. This is because it is reasonable to expect Ms X to go to court to determine any liability owed by the Council.

The complaint

1. In summary, Ms X says the poor state of the roads caused flooding and damage to her water pump.
2. She would like the Council to reimburse her for the costs of cost of pump and cost of labour of repositioning the pump (if cause of flooding is not resolved).

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The Ombudsman’s role and powers

3. 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Ombudsman’s Assessment Code.

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My assessment

5. I will not exercise discretion to investigate because the matter of liability for damages is usually decided in the courts. It is reasonable for Ms X to take the matter to court. The court can decide liability and if Ms X is entitled to claim the costs incurred.
6. There is a simple procedure in the county court for dealing with small claims.

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Final decision

7. I will not exercise discretion to investigate. This is because it is reasonable to expect Ms X to go to court to decide the Council’s liabilities for her costs.

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Investigator's decision on behalf of the Ombudsman