The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint that a Council owned tree damaged her shed. This is because it is reasonable for her to take the matters complained about to court.
The complaint
Mrs X complained: a Council owned tree fell and damaged her shed; the Council’s insurers refused her claim; and about delays in the claims and complaints process.
Mrs X said the issues complained about caused her distress and frustration.
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 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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate Mrs X’s complaint. The Council’s insurers denied her claim and told Mrs X the Council was not responsible for the tree. Mrs X disputes this and says the Council is responsible. Mrs X’s primary complaint is about liability and negligence.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property, only the courts can do this. Because the Council denied Mrs X’s insurance claim, she can now take the matter to court. Because the Ombudsman cannot determine liability it is reasonable to expect Miss X to do so, and we will not investigate this complaint.
Mrs X also complained about the Council’s processes and its subsequent complaint responses. We will not investigate these matters because it is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable for her to take the matters complained about to court.
Investigator's decision on behalf of the Ombudsman