Summary: We will not investigate X’s complaint about the Council’s maintenance of the highway or claim for damage to his property. X can take these matters to court and it would be reasonable to expect him to do so.

The complaint

1. X complained the Council’s poor maintenance of the highway, caused damage to his property.
2. X said the Council did not properly consider his compensation claim or properly respond to his complaint.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. X complained the Council’s poor maintenance of the highway led to damages to his property.
8. X said the Council did not properly respond to his compensation claim, or complaints.
9. If a person considers that a highways authority has failed to maintain a highway, it is usually reasonable for the person affected to apply to the Magistrates Court for an order to be made under the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. 
10. Negligence claims and interpreting the law around civil liability are also 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.  
11. I consider it would be reasonable for X to take this matter to court. He can both ask the court to consider whether the Council properly maintained the highway and for it to consider his claim for compensation.
12. As we will not investigate the substantive matters of the complaint, we will not investigate the Council’s handling of the complaint because it is not proportionate to do so.

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Final decision

13. We will not investigate X’s complaint because it would be reasonable to expect he takes the matter to court.

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Investigator's decision on behalf of the Ombudsman