Summary: We will not investigate this complaint about highway repair and maintenance because the courts are better placed and there is not enough evidence of fault to justify investigation.

The complaint

1. Mrs Y complained the Council has failed to repair a dip in the highway, which allows water to collect when it rains, damaging her property. Mrs Y says this has caused damage to her property frontage, to her vehicles and caused her upset and inconvenience.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

5. The Council has assessed the highway outside Mrs Y’s property. In its opinion, as the Highways Authority, it has found that while the road may change level slightly, it is not so significant as to be considered as a defect which requires work. Mrs Y disputes this.
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
7. In this case, the Council has considered the change in height between the different parts of the highway outside Mrs Y’s property. It has decided as the Highways Authority that it does not pose a sufficient risk to warrant further work, basing this decision on its experience and professional expertise and its inspection of the road.
8. As the Council has considered relevant factors in its decision-making process, there is not enough evidence of fault to justify investigating this complaint.
9. Mrs y also says her property and vehicles have been damaged from the issue and are now in need of repair. She has also said that she has considered compensation, albeit she has not previously sought this.
10. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
11. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mrs Y to pursue her claim through the Council’s insurer or the courts. We will not investigate this complaint.

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Final decision

12. We will not investigate Mrs Y’s complaint because the courts are better placed and there is not enough evidence of fault to justify investigation.

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Investigator's decision on behalf of the Ombudsman