Summary: We will not investigate this complaint about a claim for damage to X’s driveway. This is because X has an alternative legal remedy, to pursue a claim of negligence through the courts. Only the courts can decide whether the Council was negligent. It is therefore reasonable to expect them to use their legal remedy.   

The complaint

1. X complains that the Council damaged their driveway by changing the type of material used when making repairs to the highway.

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The Ombudsman’s role and powers

2. 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)
3. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
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 we cannot achieve the outcome someone wants. (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 provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council says it did not damage X’s property and that the only changes it made were to the public highway. The Council says it no longer uses the type of paving previously used in front of X’s house and now only uses asphalt.
8. We will not investigate X’s complaint because they have an alternative legal remedy through the courts if they think the Council damaged their property. Only the courts can award X compensation for damage to their property, so it is reasonable to expect them to use this remedy.  
9. We will not investigate the Council’s repairs to its highway because we cannot achieve the outcome X seeks. It is for the Council, not the Ombudsman, to decide what materials it uses when repairing the highway.

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Final decision

10. We will not investigate X’s complaint because they have an alternative legal remedy through the courts.

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Investigator's decision on behalf of the Ombudsman