Decision : Closed after initial enquiries
Decision date : 18 Mar 2021
The Ombudsman's final decision:
Summary: We will not investigate this complaint about an allegation of damage caused by the Council from a leaky refuse lorry, as it would be reasonable for Mr J to ask a court to decide the question of legal liability for the damage. The Council has taken action to reduce any future risk and there is not enough evidence of administrative fault by the Council to warrant investigation.
- The complainant, who I shall refer to as Mr J, complains the Council’s refuse lorry caused damage to the communal driveway where he lives.
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 investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- it is unlikely we could add to any previous investigation by the Council.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I read the complaint and the Council’s responses. I invite Mr J to comment on the draft decision.
What I found
- Mr J says he lives in an apartment complex and the residents are responsible for the maintenance of the driveways.
- Mr J says the Council changed how it collects the refuse from the apartment complex. For the previous nine years, he says the refuse lorry parked on the highway and the communal bins were taken to the lorry. Mr J says a change to this process means the lorry is now reversing down the driveway nearer to the bins and is leaking a substance over the driveway, which is causing damage. He says he complained to the Council and asked it to go back to the old method of collection and clean or repair the damage to the driveway.
- The Council said it has changed the refuse lorry that attends Mr J’s address to a new vehicle that should reduce substance leakage. It also said it will review the collection method and may change it if appropriate.
- Mr J and other residents can make a claim to the Council’s insurers if he believes its vehicles have caused the damage to his property. If it refuses, it would be reasonable for Mr J to ask the court to consider his claim for compensation. Allegations of damage and claims for damages are properly for a court to consider. Only a court can decide liability and award compensation.
- We will not investigate this complaint. This is because there is not enough evidence of fault in the Council’s actions to improve the refuse collection problem. It would be reasonable for Mr J to pursue claims for damage to the property through the courts.
Investigator's decision on behalf of the Ombudsman