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

The complaint

1. Mr Y complained the Council wrongly charged his for the cost of repair work to the pavement outside his property following building works, which the Council says caused damage to the footpath. Mr Y is also unhappy with the evidential basis the Council is relying on for the charges, which he says is unspecific and insufficient.
2. Mr Y says the issue has caused him distress and worry and he has had to spend time dealing with the matter.

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

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My assessment

6. Mr Y complained to the Council after he was told he would need to pay for repairs to the pavement outside his property after building work, which the Council says damaged the pavement. Mr Y disputes the charges and says there is insufficient evidence and the evidence available is not specific enough to justify the charges.
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. Mr Y can raise the issue of the evidence with the court as part of any defence to his liability for the costs. 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 Mr 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 Mr 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 Mr Y’s complaint because the court is better placed to consider the complaint, and it is reasonable to expect Mr Y to use his right to go to court about the matter.

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Investigator's decision on behalf of the Ombudsman