Summary: We will not investigate Mr B’s complaint that his property is being damaged due to the Council’s failure to maintain the road outside his home. This is because it is reasonable for Mr B to take the Council to court, which is in the best position to decide the matter.

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council has failed to put right a drainage problem on the road outside his home. Mr B says this results in standing water on the road and his property being splashed when vehicles pass. Mr B says his fence has been destroyed, and his driveway and garage wall have been weakened. Mr B says this problem has been ongoing for several years but the Council has not resolved the matter. Mr B also says the Council has wrongly refused his insurance claim for the damage to his fence. Mr B would like the Council to take responsibility and fix the cause of the problem.

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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 Act 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 information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts. Only the court can decide if the Council has been negligent. The court can decide what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order a party to pay damages.
7. The Council’s insurers have considered Mr B’s claim for compensation for the damage to his fence but did not accept the Council is liable for the damage. Mr B may pursue his claim, via his home insurer if needed, by taking the Council to court.
8. I find the court is in the best position to decide the issue Mr B complains about. This matter may be relatively complex. I note Mr B has suggested there may be a dispute about who is responsible for the maintenance of a broken pipe which has been identified as the cause of the problem. Such disputes are best decided by the courts, rather than the Ombudsman.
9. Given the seriousness of the issue Mr B complains about and the impact on his home, I find it is reasonable for Mr B to take the Council to court.
10. So, we will not investigate this complaint.

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Final decision

11. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman