Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault to justify investigating.

The complaint

1. Mr Y complains the Council has failed to properly investigate the potential subsidence of the pavement outside his property and damage caused by tree roots, which Mr Y says is causing damage to his driveway and outside wall.
2. Mr Y says his property has been damaged and he cannot repair it until the issue is resolved, which he says requires a full investigation into the cause of the issue.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mr Y says damage has been done to the driveway outside his home and to the wall running along the boundary of his property, which he says has been caused by a sinking of the pavement outside his property. The Council has carried out a site visit to the area. It has found that the dip in the pavement that Mr Y has complained about, saying this is evidence of sinking which he says is causing the damage to his property, was below the intervention level set in its policy. Its complaint response has then continued, explaining what the intervention level is.
7. As the Council has considered the issue, inspected the area and applied its policy to measure the defect. It has found that it is below the required level in which the Council will intervene and has therefore not taken action. While Mr Y may disagree with the Council’s findings, as it is able to explain its rationale, having considered relevant evidence and is acting in line with its policy there is not enough evidence of fault to justify investigating.
8. Further, Mr Y says the issue has caused damage to his property, which is now in need of repair. Mr Y has so far decided not to carry out the work, as he feels the repair would not be effective due to the defect in the pavement.
9. 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. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
10. Consequently, any claim for damages, such as costs for repairs if these are incurred, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or through the Council’s insurer. We will not investigate this complaint.

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Final decision

11. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating.

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Investigator's decision on behalf of the Ombudsman