Summary: Mrs X complains the Council caused unacceptable dust from road resurfacing, affecting her health. The Ombudsman has discontinued his investigation because it is reasonable to expect her to pursue a legal claim against the Council.

The complaint

1. Mrs X complains the Council’s resurfacing work to a road near her home has caused unacceptable dust. She says that this is affecting her health. She has made an insurance claim against the Council.

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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. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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How I considered this complaint

4. I have considered the complaint and the copy correspondence provided by the complainant. I have invited the complainant’s comments on my draft decision.

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What I found

5. Mrs X contacted the Council regarding high levels of dust from road works. She made a claim against the Council because she said the works were completed but the dust was not clearing. She said due to her medical condition she feared it would affect her health. The Council acknowledged her claim and asked for further information.
6. Mrs X chased a response two weeks later and asked the Council’s environmental health department to visit to inspect the dust, which she said she was still trying to clean. The Council advised it would contact its contractor about her claim, but its environmental health team did not investigate these matters.
7. Mrs X also asked the district council’s environmental health department to visit to inspect the dust. The district council advised that it did not investigate dust from road works if they were completed. It advised Mrs X to contact Essex County Council as it had carried out the road works.
8. Mrs X complained to Essex County Council because she said she was still cleaning the dust. She had been told the dust was harmless but had no further information about how it affected people with lung problems or eye infections. She wanted the Council to check the dust she had retained when vacuuming.
9. The Council replied there would always be some dust from the road resurfacing process in the first few days. But this should settle after a few days. The Council said the dust was inert and should not cause any medical problems. It advised its senior engineer would visit the site and if any works or sweeping were required it would do this.
10. Mrs X replied that the dust levels had been high, and it was still slow in clearing. She asked how she could clear it and still had concerns regarding her health.
11. The Council replied that its engineer had inspected the site as scheduled and the surface did not have a residual dust problem. It explained that cooler temperatures had led to an increase in dust when the stone had not fully embedded. In this case some areas the dressing had not embedded as well as it would normally expect but it said it would inspect again after the first frost and if necessary, carry out some patch repairs.

Analysis

12. The Council has inspected the site and had not found residual dust. Therefore, it does not appear there is an ongoing issue. It has advised it would reinspect and if necessary, address any issues.
13. Mrs X has made a claim against the Council’s insurers. I do not know the outcome of this but if it is rejected Mrs X can pursue a claim against the Council by taking court action.
14. The Ombudsman cannot investigate personal injury claims and cannot recommend compensation. Similarly, the courts are best placed to consider claims regarding damage to personal possession due to negligence. Therefore, I propose to discontinue the investigation.

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Final decision

15. I have discontinued my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman