Summary: The Ombudsman will not investigate this complaint relating to roadworks outside the complainant’s home. The complainant should seek a remedy in court for any damage caused to her property. Issues about trespass on a private road are also matters the courts are best placed to decide. Other fault by the Council has not caused the complainant injustice that would warrant the Ombudsman’s involvement.

The complaint

1. The complainant, who I refer to here as Miss B, has complained in relation to roadworks outside her home. She says the Council did not properly explain to her the position regarding contractors using the footway and a road outside her home. She also says her wall and driveway were damaged during the roadworks. Miss B also says the Council trespassed on a private access road when it carried out the works.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
4. 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’.
5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• the fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered what Miss B said in her complaint and background information provided by the Council. Miss B commented on a draft before I made this decision.

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What I found

Damage to property

7. If Miss B believes the Council is responsible for damage to her property she is, in effect, complaining the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
8. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers. I have seen no reason Miss B should not do this if she has not already done so.

Trespass

9. Miss B believes the access road near her home is private and the Council had no right to enter it. The Council says although the road is unadopted highway there is a right of access. I consider the courts are best placed to resolve such disputes.

Other matters

10. Miss B complained to the Council about information it gave her about use of the footway and a road outside her home during roadworks. The Council has accepted it provided Miss B with some conflicting comments. However, it has now explained the position to her although there was some delay in doing so.
11. I consider there has been no fault by the Council that has caused Miss B injustice that would justify the use of public funds to investigate.

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Final decision

12. I have decided we will not investigate this complaint for the reasons in paragraphs 8,9 and 11 above.

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Investigator's decision on behalf of the Ombudsman