The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that her property was damaged by a Council-owned tree. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
The complainant, who I will refer to as Mrs B, complains that her property was damaged by a Council-owned tree which fell during a storm. Mrs B complains the Council has not repaired the damage or paid her compensation so she can get the work done.
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)
How I considered this complaint
I considered information provided by Mrs B and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B has put in a compensation claim to the Council but is not satisfied with the Council’s decision in response.
Mrs B’s complaint is mainly that her property has been damaged because of Council negligence. 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 home insurer. I do not consider there is any exceptional reason why Mrs B cannot do this, so we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue her compensation claim at court.
Investigator's decision on behalf of the Ombudsman