Summary: We will not investigate this complaint about highway repairs because it is reasonable to expect Mr Y to go to court about the matter, who are better placed to consider the complaint.

The complaint

1. Mr Y complains the Council has wrongly charged him for the cost of repairs to the pavement and complains the Council has insufficient and potentially contradictory evidence to prove his liability.
2. Mr Y says as a result he has been wrongly charged for the damage and has spent time dealing with the matter. He also says the Council waited until several months after the work was completed before making the charge, which meant he was unable to provide proof that he was not the cause of the damage.

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The Ombudsman’s role and powers

3. 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)
4. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
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. (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 Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y complained to the Council after he was told he would be invoiced for the costs of repairs to the footpath outside his property after building work, which the Council says damaged the pavement. Mr Y disputes the charges and says it is based on flawed evidence and the wrong test for liability being used, amongst other issues.
8. Under s133 Highways Act 1980, Council can recover costs of repairs to the highway from those who cause damage to it. Where a person disputes their liability for the costs, it is for that person to dispute this through the courts when they receive an invoice for the costs.
9. We may decide not to start an investigation if we think the issues could reasonably be raised as part of the legal proceedings regarding a closely related matter. In this case Mr Y may wish to raise the evidence and points he has raised as part of his complaint to us with the court. This would include but would not limited to the time taken for the invoice to be issued, the evidence regarding the Council’s records and the Council’s decision to charge Mr Y for the works.
10. As the courts can decide liability, where we cannot, it is better placed to consider the complaint as it can consider the issues and decide whether Mr Y owes the amount or not.
11. 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 Mr Y may be able to claim back any costs as part of the claim he makes to the court if he is successful. Also, reasonable adjustments can be made for access to the service, if necessary, by the courts. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter.

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Final decision

12. We will not investigate Mr Y’s complaint because it is reasonable to expect him to go to court about the matter, who are better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman