Summary: We will not investigate Mr X’s complaint about damage caused to his driveway. This is because it is reasonable to expect Mr X to make a claim for damages via the Council’s insurers and if this is refused to pursue his claim in the courts. We cannot decide a negligence claim as it is a legal matter for the courts to consider and decide.

The complaint

1. The complainant, Mr X, complains the Council damaged his driveway when it carried out repair work to the footpath in front of his property. He also complains the Council did not inform him in advance that the work was going to be carried out. He says the Council repaired the damage without his knowledge or consent and did not repair it to a satisfactory standard.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained to the Council about the matters set out in paragraph 1, above.
8. The Council said the lack of edging and the existing deteriorated state of the tarmac on the edge of Mr X’s driveway had caused it to break and fall off when it was repairing the footpath. It set out its reasons for repairing the driveway in the way it did. It confirmed a worker had knocked on Mr X’s door at the time but there was no reply. It provided Mr X with a claim form so that he can submit a claim for damages via the Council’s insurers.
9. Mr X says the Council was dishonest in claiming to have knocked on his door as he was at home and did not hear anyone knock
10. We will not investigate Mr X’s complaint. This is because it is reasonable to expect Mr X to submit a claim for damages via the Council’s insurers as set out in the Council’s complaint response. If the claim is refused and Mr X wants to pursue the matter further, he can make a claim for damages in the small claims court.
11. We cannot decide a negligence claim as it is a legal matter for the courts to consider and decide. Only the courts can decide whether the damage is caused by negligence by the Council and, if so, whether to award any damages Mr X seeks. We cannot make such a ruling. Making a claim in the small claims court is a simple, accessible and low cost process with fees on a sliding scale depending on the level of the monetary claim. Those on a low income can apply for help with the fees.
12. We will not investigate Mr X’s complaint that the Council has been dishonest in claiming to have knocked on his door. The Council says an officer knocked. Mr X says he did not hear anyone knock. I have no cause to doubt either party’s account. I cannot see that further investigation on this point could add to the response already provided.

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Final decision

13. We will not investigate Mr X’s complaint because it is a complaint about negligence which is a legal matter for the Council’s insurers and, if required, the courts to consider and decide.

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Investigator's decision on behalf of the Ombudsman