Summary: We will not investigate Mrs B’s complaint that her property is being damaged due to the Council’s failure to maintain a section of road. This is because it is reasonable for Mrs B to put in a claim to the Council’s insurers, and if needed, take the Council to court.

The complaint

1. Mrs B complains her home is being damaged by vibrations due to the poor condition of the road outside her property. Mrs B says the house shakes every time a large vehicle passes and the damage is getting worse. Mrs B says the Council has dismissed her complaint twice without an investigation. Mrs B would like the Council to repair the road.

Back to top

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)

Back to top

How I considered this complaint

4. I considered information provided by Mrs B.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Our role is to consider complaints of administrative fault. We do not normally investigate complaints about damage to property. This is because in effect such complaints are that an organisation has been negligent. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
7. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
8. As advised by the Council, Mrs B may put in a claim to the Council’s insurers for the claimed damage to her home. Mrs B may do this directly or via her building insurer. If Mrs B is not satisfied with the outcome, she may pursue her claim at court.
9. Because of the complexity and seriousness of the issue Mrs B complains about, I find it is reasonable and proportionate to expect her to pursue this matter at court if needed.
10. So, we will not investigate this complaint.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman