Summary: We will not exercise discretion to investigate this complaint about damage caused to Mr X’s property arising from the Council’s alleged failure to clear gullies on the public highway. It is reasonable to expect Mr X to go to court to decide any liability owed by the Council.

The complaint

1. Mr X, says Council failure to clear blocked gullies on the public highway has caused damp and damage to his property and flooding destroyed his possessions.
2. He would like the Council to take steps to improve highway drainage.

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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)

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How I considered this complaint

4. I considered information provided by the Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. I will not exercise discretion to investigate because the issue of liability and any damages owed is usually decided in the courts. It is reasonable for Mr X to take the matter to court. The court can decide liability and if Mr X is entitled to claim the costs of any remedial works required. There is a simple procedure in the county court for dealing with small claims.

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Final decision

7. I will not exercise discretion to investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liabilities owed for the damage.
   
   Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman