Summary: We will not investigate this complaint about highway maintenance because it is reasonable to expect Mr Y to go to court about the matter and the courts are better placed.

The complaint

1. Mr Y complained the Council has failed to take responsibility for damage to his property following the removal of a stone bollard which has led to damp problems in his property. Mr Y is also concerned that without the bollard to protect his wall, vehicles will drive into his property, causing further damage.

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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)
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 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 Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

5. Mr Y says the Council’s actions in removing the stone bollard on the road outside his home has caused damage to his property. Mr Y is seeking for the Council to take responsibility for the repairs to his property. This would be a claim for damages, which Mr Y is seeking to hold the Council responsible for.
6. 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. Mr Y may wish to start this process by approaching either the court or the Council’s insurer.
7. We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts.
8. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter. We will not investigate this complaint.

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Final decision

9. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to go to court about the matter and the courts are better placed.

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Investigator's decision on behalf of the Ombudsman