Summary: We discontinued our investigation into Miss X’s complaint that Council road works caused her business to lose money. This was because we are not the right body to deal with her complaint and we are unlikely to achieve the outcome she wants.

The complaint

1. Miss X complained about roadworks carried out by the Council. She complained the roadworks affected her business premises because they were not planned and carried out correctly.
2. Miss X said she lost a significant amount of money because her customers were unable to access her business premises during the roadworks. She also said this caused her stress.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6))

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 the information Miss X and the Council provided along with relevant law and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

7. Miss X owns a business. In 2021 the Council carried out roadworks near Miss X’s business premises for approximately seven weeks. During this period there were road closures and diversions in place. This made it difficult for customers to access Miss X’s premises. As a result, Miss X said she lost 95 per cent of her customers and suffered a significant financial loss.
8. Miss X said this caused her stress and she wanted the Council to compensate her for her lost income.
9. Miss X complained to the Council in September 2021. It gave its final response in October 2021. It told Miss X it was not liable for her lost income because the loss was ‘pure economic loss’.
10. Miss X was unhappy with the Council’s response and complained to the Ombudsman.

My findings

11. I discontinued my investigation.
12. Miss X complained her business suffered financial loss because of roadworks the Council carried out.
13. The guidance on this is clear:

“…there is no compensation if a business is affected by road works… businesses should not have the right in law to any particular given level of passing trade, and that traders must take the risk of loss due to temporary disruption of traffic flow…” (House of Commons, Guidance Note, Roads: compensation for loss of business from road works)

14. The other parts of Miss X’s complaint about the planning and supervising of the road works and staff conduct are secondary to the main part of Miss X’s complaint. Further investigation of these, in isolation of the main part of the complaint, is not proportionate and is unlikely to achieve the outcome Miss X wants.
15. If Miss X suffered financial loss because she alleges the Council’s actions in relation to the road works were improper then the correct way to challenge that is through the courts. This option remains open to Miss X.

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Final decision

16. I discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman