Summary: We will not investigate Mr X’s complaint about damage to his driveway. It is reasonable for him to make a claim on the Council’s insurance. If the Council does not accept liability for the damage, he can ask the court to decide.

The complaint

1. The complainant, Mr X, complains about damage to his property which he says results from changes to the footpath next to his property.
2. He also complains the Council has not made the agreed changes and the quality of the work is poor.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
5. 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
• further investigation would not lead to a different outcome
• we cannot achieve the outcome someone wants

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

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How I considered this complaint

6. I considered:
• information provided by Mr X and the Council
• the Ombudsman’s Assessment Code
• Mr X’s comments on the draft version of this decision

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My assessment

7. The Council carried out work on a bus stop in front of Mr X’s home. This caused water to pool across the pavement and on to Mr X’s garden. Pedestrians walked on his garden to avoid the water.
8. Following his complaint, the Council made changes. It says it is satisfied it has resolved the problem and people no longer have to detour on to Mr X’s garden to avoid puddles.
9. Mr X is not satisfied. He says the Council has:
• not resolved the flooding issue
• not completed the works to a satisfactory standard
• not done what was agreed
• damaged his property

He also says the work is of poor quality and not in keeping with the estate where he lives.

10. Mr X wants the Council’s to carry out all work he says it agreed to ensure no water pools on the edge of his garden. And to compensate him for damage to his property and repair it.
11. The council is the highway authority, and it has a duty to maintain a highway or pavements, so it is passable for users including traffic and pedestrians. There is no specified level of maintenance in the Highways Act 1980 and the duty does not apply to owners of adjacent property. This means the Council is only required to ensure there is no defect in the pavement which would affect the pedestrians using it.
12. The Council has confirmed it is satisfied with the work, saying to Mr X:

“… the remedial works have addressed the issue of water flowing from the highway on to your property, and the issue of ponding from old to new surfacing, which people were walking over your grass to avoid. Therefore, at the present time, Highways do not plan to undertake any additional works at this location.”

13. Mr X disagrees with the Council’s view and is unhappy with the quality of the work. However, we cannot find fault if the Council, as highway authority, is satisfied the condition of the pavement meets the needs of users.
14. Complaints about damage to property are legal matters which are outside our jurisdiction. Only the Council’s insurers or the courts can decide whether the Council is liable for damage to Mr X’s property. It is reasonable for Mr X to claim on the Council’s insurance for the damage to his property. If the Council does not accept liability for the damage, he may ask the court to decide.

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Final decision

15. I will not investigate this complaint. There is not enough evidence of fault which would warrant an investigation. And it is reasonable for Mr X to make a claim about the damage to his property and seek a court remedy if necessary.

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Investigator's decision on behalf of the Ombudsman