Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s work to a pavement causing damp to his property, or how it has responded to his concerns about it. The core of the complaint is a claim of liability against the Council, which is a matter for the courts to determine. It is reasonable for Mr X to go to court as it can make the finding and provide the outcomes he seeks.

The complaint

1. Mr X owns a property next to the highway, owned and maintained by the Council. Mr X complains the Council has:
1. done work to the pavement which is causing damp to the property;
2. delayed in dealing with the problem;
3. failed to disclose all relevant information about officers’ assessments and reports on the matter;
4. dealt with his complaint poorly, including slow, inadequate communication, and failure to answer direct questions in written form.
2. Mr X says his property has suffered several months of water damage and damp due to the Council’s works. He considers the damage caused to the house has made it uninhabitable, due to the health risk caused by the damp. He says he cannot repair the damp in the property as this would be pointless until the pavement is fixed. Mr X says the matter has cost him financially, taken up his time, and caused him trouble and inconvenience.
3. Mr X wants the Council to:
• fix the footway, because Mr X believes it would be illegal for him to do it;
• compensate him for his financial losses;
• provide him with details of all inspections and reports done on the matter;
• explain why the Council’s report findings have changed;
• apologise to him.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

6. At the core of Mr X’s complaint is a question of liability. Mr X believes it is the Council’s works to the pavement which have led to damage to his property. The Council and its insurers have denied any liability.
7. To investigate Mr X’s complaint, the Ombudsman would have to determine there was fault in the Council’s work on the footway which has directly led to the damp in Mr X’s property. This requires a finding on the liability question, which the Ombudsman cannot make. Liability is a legal issue, determined by the courts.
8. The courts can decide liability and make compensation awards for claimed losses. They have the relevant expertise and powers to determine the claims Mr X is making against the Council and can offer him the financial compensation and remedial works he seeks.
9. I realise Mr X considers the cost of legal action would be disproportionate to the sum needed to fix the damp. But any finding of liability against the Council may help protect Mr X’s property from similar damage in the future, not solely provide redress for current damage. I remain of the view it is reasonable for Mr X to take the matter to court, as that is the body which can make the determination on liability and redress he wants. Mr X may wish to seek independent legal advice before pursuing that route.
10. Mr X also wants copies of all evidence relating to the decisions made by officers on the pavement works. Legal action may bring out the relevant documents Mr X wants to see because each side would have to provide evidence which both supports their position, or that of the opposing party.
11. I understand Mr X has made a formal request to the Council for the documents, did not receive a reply in time, and has complained to the Information Commissioner’s Office (ICO). The ICO is the organisation created by national government to deal with matters of data access and disclosure, so is the appropriate body to consider this issue for Mr X. The Ombudsman cannot investigate a matter which has been taken to the ICO.
12. The Council’s final reply to Mr X’s complaint recommended the highways service area confirm what work they plan to do on the pavement by the start of August 2020. Mr X says officers have not done this. It is unfortunate if the Council has not met that date, but this is a new matter which could not form part of Mr X’s Ombudsman complaint, as it has happened after Mr X submitted it. Mr X may wish to chase the matter further with the Council.
13. In any event, what future work the Council does on the pavement is not relevant to the issue of Council liability at the centre of the complaint Mr X submitted. Once the Council has advised what future work it intends to do, the question of whether it has any liability for the damp damage in Mr X’s property would remain unresolved.
14. Mr X has also complained about the Council’s handling of his complaint. But where the Ombudsman does not investigate the core issue giving rise to the complaint, he would not investigate a council’s complaint process in isolation.

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Final decision

15. The Ombudsman will not investigate this complaint. This is because:
• Mr X’s core complaint is a claim of liability against the Council, which is a matter for a court to decide;
• it is reasonable for Mr X to take the matter to court as it is the body which can make the finding and provide the outcomes he seeks;
• the Ombudsman does not investigate complaints about councils’ internal complaint processes when he is not intending to investigate the core complaint issues.

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Investigator's decision on behalf of the Ombudsman