Summary: We will not investigate this complaint about the Council’s response to a highways defect because it is reasonable for the complainant to go to court.

The complaint

1. X complains the Council failed to address highway disrepair because of a failed water gully, resulting in either damage to property or the risk of it. X wants the Council to pay for the costs of them repairing earlier damage to their property caused by damp.

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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)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. X has the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring a highway including a gully, up to standard.
6. Only the courts can decide whether the Council has maintained the highway properly or is liable for any damage to property due to a failure to repair the highway. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for X to go to court and so I will not investigate.
7. Additionally, only a court could say the Council was liable for damages and whether it should then compensate X for the costs associated with that damage. We could not do so; therefore, it would be reasonable for X to make a claim for costs through his insurers.

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Final decision

8. We will not investigate this complaint because it is reasonable for the complainant to go to court.

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Investigator's decision on behalf of the Ombudsman