Summary: We will not investigate this complaint about liability for damage to a public footpath. The Ombudsman cannot determine liability for damage, only the courts can. Also, because we cannot decide liability, we cannot achieve the outcomes Ms X wants.

The complaint

1. Ms X complained the Council intends to take recovery action for damage to a public footway it says was caused by works on her property. Ms X disputes liability for the damage.
2. Ms X also said the Council sent her a Letter Before Action before completing its complaints procedure.
3. Ms X said the matters caused distress.
4. Ms X wants the Council to apologise, end its recovery actions and provide a financial remedy to recognise the time and trouble she has experienced.

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The Ombudsman’s role and powers

5. 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, or
• 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

6. I considered information provided by Ms X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not investigate Ms X’s complaint. The Ombudsman cannot determine liability for damage, only a court can.
9. If the Council starts court action against Ms X, she can raise a defence and challenge liability in court.
10. Additionally, we cannot direct the Council to withdraw the highway damage charge and end recovery action so we cannot achieve the outcomes Ms X wants.
11. It is not a good use of public resources to investigate complaints about complaint procedures, if we decide not to deal with the substantive issue.

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Final decision

12. We will not investigate Ms X’s complaint because only the courts can decide liability for damage, and we cannot achieve the outcomes she wants.

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Investigator's decision on behalf of the Ombudsman