Summary: We will not investigate this complaint about highway maintenance because the courts are better placed to consider the complaint.

The complaint

1. Dr Y complained the Council failed to inform residents of work being completed on the highway which caused damage to her property. Dr Y says the work was not carried out safely and she is looking for the Council to pay for the repair to her damaged property.
2. Dr Y says the issue has cost her financially as well as the time spent dealing with the matter.

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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 another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)

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How I considered this complaint

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

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My assessment

6. 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 or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
7. We cannot decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to her garage, which Dr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts or the Council’s insurers. We will not investigate this complaint.
8. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service and Dr Y may be able to claim back any costs as part of the claim she makes to the court if she is successful in the substantive matter. Also, reasonable adjustments can be made for access to the service, if necessary, by the courts. It is therefore reasonable for Dr Y to be expected to use her right to go to court about this matter. Consequently, we will not investigate.

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Final decision

9. We will not investigate Dr Y’s complaint because the courts are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman