Summary: We will not investigate this complaint about a footpath Mr X says affects his home. It is reasonable to expect Mr X to approach take court action.

The complaint

1. Mr X complained the Council has increased the height of the public footpath next to his property, which has affected his property’s damp proofing. Mr X says this interfered with his property and has stopped him from being able to put in cavity wall insulation. Mr X wants the Council to fit drainage between the property and footpath to avoid any problems with damp and water ingress.

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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 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

4. I considered information provided by Mr X.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council told Mr X it has reviewed records about the footpath dating back to 2009 and it has always been the same height. The Council denies increasing the height.
7. We cannot decide if the Council is legally liable for any interference with Mr X’s private property or if it should install drainage to prevent any future risk. This is a legally complex matter which the courts are better placed to decide. It is reasonable to expect Mr X to take court action if he believes the Council is at fault.

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Final decision

8. We will not investigate Mr X’s complaint because it is reasonable to expect Mr X to use his right to go to court.

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Investigator's decision on behalf of the Ombudsman