Summary: We will not investigate this complaint about highway repair because the court is better placed to consider the complaint, and it is reasonable to expect Mrs Y to use her right to go to court about the matter.

The complaint

1. Mrs Y complained the Council is wrongly seeking to recover the cost of repairs to the highway outside her property after she had building works completed on her home. She is also unhappy that she was not notified of the damage for eight months after the Council identified the issue.
2. Mrs Y says she has spent time and effort in dealing with correspondence about the issue and is faced with worry and uncertainty.

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The Ombudsman’s role and powers

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)
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 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 Mrs Y provided and the Ombudsman’s Assessment Code.

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My assessment

6. Mrs Y complained to the Council after she was told she would need to pay for the footpath repairs outside her property after building work, which the Council says damaged the pavement. Mrs Y disputes the charges because she says the footpath was already damaged due to their age. She is also unhappy that she was not made aware of the damage allegedly caused for eight months after the Council says it became aware of the issue.
7. Under s133 Highways Act 1980, Council can recover costs of repairs to the highway from those who cause damage to it. Where a person disputes their liability for the costs, it is for that person to dispute this through the courts when they receive an invoice for the costs. Mrs Y may wish to raise the issue of the time it took the Council to invoice her for the damages or make her aware of the damage she allegedly caused as part of any action against the charges. We cannot decide liability in such situations, where the courts can.
8. As the courts can decide liability where we cannot and there is a right to dispute such charges in court, it is reasonable to expect Mrs Y to use this right and approach the court. This is particularly as the court is better placed to consider the complaint as it can decide whether Mrs Y owes the amount or not, where we cannot decide this. We will therefore not investigate this complaint.

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Final decision

9. We will not investigate Mrs Y’s complaint because highway repair because the court is better placed to consider the complaint, and it is reasonable to expect Mrs Y to use her right to go to court about the matter.

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Investigator's decision on behalf of the Ombudsman