Summary: The Ombudsman will not investigate the complaint made by Ms B about roadworks causing her business to lose customers. This is because we would be unable to say any fault by the Council caused the injustice Ms B is claiming. The courts are better placed to decide if the Council is liable for the loss Ms B claims.

The complaint

1. Ms B has complained repairs to the pavement by the Council took more than the six weeks the Council initially said it would take. As a result, her business lost more than £10,000 due to the dust, dirt and reduced access to her building by customers.

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The Ombudsman’s role and powers

2. 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
• the fault has not caused injustice to the person who complained,

(Local Government Act 1974, section 24A (6), as amended)

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 the correspondence between the Council and Ms B. I have also considered Ms B’s response to the draft decision.

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What I found

5. On 25 October 2019 Ms B complained to the council about the fact that the works had been going on for eight weeks instead of the six weeks originally promised. She also advised that due to the noise, dirt, lack of parking, this had now had a financial effect on her business, and she had lost £10,000 worth of takings.
6. Section 41 of the Highways Act 1980 places a duty on highway authorities to maintain public highways. Highway authorities are expected to routinely monitor the state of the highways for which they are responsible and to carry out repairs where necessary.
7. Ms B is seeking compensation for the loss of revenue resulting from the pavement work. There is no statutory basis for councils to compensate for loss of business claimed because of roadworks. Any claim would have to be based on negligent acts by the Council and is therefore a liability issue. The courts deal with claims for loss and damages from negligence and would be better placed to consider this issue.
8. The Ombudsman cannot normally investigate a complaint when someone can take the matter to court. Only the courts would be able to decide if the Council is liable for Ms B’s £10,000 loss in revenue, so it would be reasonable for her to pursue her losses in court.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because we would be unable to say any fault caused the injustice suffered by Ms B, and it would be reasonable to expect her to pursue her claim in court.

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Investigator's decision on behalf of the Ombudsman