The Ombudsman's final decision
Summary: We will not exercise discretion to investigate this complaint about damage caused to the complainant’s fence. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council.
The complaint
In summary, Mrs X complains about overgrown vegetation that damaged her fence. She wants to be reimbursed for the cost of the new fence.
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)
How I considered this complaint
I considered the Ombudsman’s Assessment Code.
I considered information provided by the complainant which includes details of her insurance claim against a different Council.
My assessment
Mrs X says the vegetation complained of is sited on nearby land owned by Surrey County Council. But day to day management of the land rests with Woking Borough Council. Mrs X has provided information showing she has been liaising with Woking to get the land cleared.
Mrs X also says that Surrey County Council told her to raise her claim Woking Borough Council. When she did Woking turned down her claim.
I will not exercise discretion to investigate because the matter of liability for damages is usually between the Council’s insurers and the courts.
Mrs X has already made an insurance claim which has been rejected. It is reasonable for her now to take the matter to court to protect her private property. The court can decide which Council is liable and if Mrs X is entitled to damages.
There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.
Final decision
I will not exercise discretion to investigate. This is because it is reasonable to expect Mrs X to go to court to decide the Council’s liability.
Investigator's decision on behalf of the Ombudsman