Summary: We will not investigate Mr X’s complaint that the Council wrongly decided he was liable for pavement damage. This is because there is not enough evidence of fault by the Council to justify investigating. The courts are best placed to consider any continuing dispute over liability.

The complaint

1. Mr X complains the Council wrongly decided he was liable for damage to a pavement following several Council inspections. Mr X disputes liability for the repair costs because he says the damage was caused by building works at a neighbouring property. He says the Council failed to show building works at his property caused any of the damage.
2. Also, Mr X complains the Council initially wrongly decided he was solely liable for the damage and then changed its decision so that he and the neighbour were jointly liable for the costs. He says the Council incorrectly based its revised decision on the assumption there was a joint building site.

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The Ombudsman’s role and powers

3. 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

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

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and, but for that fault, officers would have made a different decision. So, we consider the processes councils have followed to make decisions.
7. The Council originally sent an invoice to Mr X for the full amount of the repair costs. Mr X challenged the Council’s decision. The Council’s original decision was based on information held by HM Land Registry at the time about ownership of Mr X and his neighbour’s properties. During the Council’s informal resolution and complaints process, it confirmed it no longer considered Mr X solely liable for the repair costs. It sent Mr X a revised invoice that reflected the proportion of the repair costs that it had attributed to works at his property. For these reasons, there is not enough evidence of fault in the Council’s decision-making process to justify investigating.
8. The Council considered the evidence provided in support of Mr X’s claim he was not liable for any of the damage. But the Council maintained its decision that Mr X was liable for damage to pavement directly outside his property. The Highways Act 1980 (“the Act”) gives the Council the right to recover costs in this way. In its complaint responses, the Council provided clear reasons for deciding the site was a joint building site. It said its inspection showed a heavy vehicle mounted on the pavement with contractors passing material between the two neighbouring properties. There is not enough evidence of fault by the Council to justify an investigation.
9. We will not investigate any ongoing dispute about Mr X’s liability for his portion of the repair costs. The Act does not provide Mr X with any appeal mechanism or formal right of appeal. This means Mr X could only dispute the claim in defence of action at court by the Council to recover the cost of repairs. We cannot make decisions about liability for damage. The courts are better placed to consider any continuing dispute over liability if and when the Council takes court action to recover payment.

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Final decision

10. We will not investigate Mr X’s complaint that the Council wrongly decided he was liable for pavement damage. This is because there is not enough evidence of fault in the Council’s decision-making to justify investigating. The courts are best placed to consider any continuing dispute over liability.

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Investigator's decision on behalf of the Ombudsman