Summary: We will not investigate Miss X’s complaint the Council is responsible for damp occurring in her property. That is because Miss X’s complaint is best dealt with through insurance, or the courts.

The complaint

1. Miss X complained about the height of a pavement outside her property. She said the pavement was too high and had breached the damp proof course. She said because of that, her property had become damp. She wants the Council to pay for the cost of necessary remedial action.
2. Miss X also complained about how the Council had dealt with her subject access request (SAR).

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not investigate Miss X’s complaint the height of the pavement is causing damp in her property. That is because we cannot decide the liability issues the complaint raises. Whether the Council is responsible for the damage caused to Miss X’s property is a legal matter that only insurers and the courts can decide.
9. Miss X may wish to pursue a claim with the Council’s insurers if she has not already done so. If Miss X has lodged an insurance claim and it has been rejected, or it is rejected in future, this would mean the legal issues raised here could only then be determined by a court.
10. We will also not investigate how the Council dealt with her SAR. That is because the Information Commissioner’s Office (ICO) is best placed to consider complaints about access to information. The Council has directed Miss X to the ICO. It is reasonable for her to pursue her complaint there.

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Final decision

11. We will not investigate Miss X’s complaint because the court is best placed to consider whether the height of the Council’s pavement has caused damage to her property.

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Investigator's decision on behalf of the Ombudsman