Summary: We will not investigate this complaint about highway maintenance because the court is better placed to consider the complaint, and it is reasonable to expect Ms X to use her right to go to court about the matter.

The complaint

1. Ms X complained the Council wrongly issued an invoice for the cost of damage to the pavement outside her property after she had building work done. Ms X complained the Council also has disregarded evidence to show she did not cause the damage.
2. Ms X feels the issue has caused considerable upset and worry and potentially financial costs. She also feels the Council is unfairly charging her, but does not believe it has charged her neighbours.

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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 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

5. I considered information Ms X provided and the Ombudsman’s Assessment Code.

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My assessment

6. Ms X complained to the Council after she was sent an invoice for the costs of repairs to the footpath outside her property after building work, which the Council says damaged the pavement. Ms X disputes the charges, particularly as she says the pavement was damaged prior to the work she had completed on her property. She also says the Council does not have evidence to show she was responsible for the damage and feels some may have been damaged by her neighbours.
7. 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. Ms X may wish to raise the evidence she says the Council has not considered as part of any legal proceedings in the matter. She can also raise the issue of her neighbours being potentially liable as part of these proceedings. We cannot decide liability in such situations, where the courts can.
8. As the courts can decide liability where we cannot and there is a right to dispute such charges in court, it is reasonable to expect Ms X to use this right and approach the court. This is particularly as the court is better placed to consider the complaint as it can decide whether Ms X owes the amount or not, where we cannot decide this. We will therefore not investigate this complaint.

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Investigator's decision on behalf of the Ombudsman