The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that the Council has damaged her boundary wall. This is because it is reasonable for Mrs B to pursue her claim against the Council at court.
The complaint
The complainant, who I will refer to as Mrs B, complains that the boundary wall of her property has eroded and become unsafe because of work done by the Council to the road alongside the wall. Mrs B complains that the Council has wrongly refused her claim for the damage to the wall. Mrs B also complains that the Council has not released its own report on the condition of the wall. Mrs B would like the Council to rebuild the wall with the correct support structures in place.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Act 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) The Act says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
We do not normally investigate complaints about damage to property. This is because such complaints are that an organisation has been negligent.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers. I do not consider there is any exceptional reason why Mrs B cannot do this. So, we will not investigate Mrs B’s complaint about the damage to her boundary wall.
Mrs B also complains that the Council has not released its report on the condition of the wall. Mrs B has complained to the Information Commissioner about this. The Information Commissioner is in the best position to decide complaints about freedom of information requests. Also, it is reasonable for Mrs B to appeal to the first tier tribunal against a decision notice of the Information Commissioner. So, we will not investigate this part of Mrs B’s complaint.
Final decision
For the above reasons, we will not investigate Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman