Summary: We will not investigate this complaint about damage to the complainant’s house because of a defective highway repair. This is a matter that needs to be determined in court.

The complaint

1. The complainant, who I shall call Mr X, complains his house has suffered water damage caused by a defect in the highway outside his home.

Back to top

The Ombudsman’s role and powers

2. 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)

Back to top

How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. The Council has a duty to maintain the highway and keep it safe. The law recognises that a council cannot keep a road free of defects all the time. The courts have found that a council will normally only be liable for damage if it does not have a system for checking roads or was aware of a defect and had not taken any action.
6. Mr X says the Council carried out work on the highway outside his home. He says this caused water to pool which has damaged his home. The Council’s insurer’s have refused Mr X’s claim.
7. We will not investigate this complaint because this is a matter for the courts. The Ombudsman is not an appeal body and we do not decide claims for damages or make decisions about liability and negligence. Only the courts can decide if the Council has been negligent. Only the courts have the necessary expertise to determine liability and, if a court decides a council has been negligent, to decide what should be paid in damages.

Back to top

Final decision

8. We will not investigate Mr X’s complaint because it is a matter for the courts.

Back to top

Investigator's decision on behalf of the Ombudsman